Many times, people are surprised or disappointed by how someone has done their estate plan. It may be that they are unhappy with who has been named as executor or they may be unhappy with how property is divided. Assuming that the will has all of the legal requirements to be a will (signed by two witnesses, signed by the will maker, etc.) then more than likely it will be admitted to probate. At that point, for someone who is unhappy with the terms of the will, there are only a few options.
There are two main reasons that a will can be challenged: undue influence and lack of testamentary capacity.
Undue influence means someone – usually someone in a close relationship with the deceased – influenced them to put certain provisions in their will. Probably the most common example of this is when one child influences a parent to name them as the sole beneficiary under their will, excluding all of the other children. Sometimes a caregiver may influence an elderly patient to leave part or all of their estate to them. But there are less obvious examples as well. The child might influence the parent to leave a large share to a grandchild (the child’s child) or the caretaker may influence the elderly patient to leave their estate to a friend of the caretaker – making the influence less obvious.
However, just because these things happen, doesn’t mean that undue influence is present. It’s possible that the deceased really could have wanted to leave their estate to the person named. But it will be up to the people named in the will to prove that the will reflects what the deceased wanted – that can be through other actions of the deceased, statements from other people (as long as they are admissible), and other documents or notes from the deceased.
The other avenue for contesting a will is lack of testamentary capacity. This simply means that the deceased was not competent and did not understand what they were doing when they signed the will. This is very difficult to prove, because in most states it only matters if the deceased lacked this capacity at the time they were signing the will. In other words, they could be completely “out of it” for 23 hours and 30 minutes of the day, but if they understood what they were doing during that 30 minutes they signed the will, they had the competence needed to sign the will.
Some common forms of proof used in these cases are medical records, statements from individuals that knew and frequently saw the deceased. If the will was signed in front of an attorney, that attorney – as well as any office staff from that attorney’s office – will likely be called as a witness to testify about what they saw when the will was signed.
As you might imagine, both undue influence and lack of testamentary capacity cases are difficult to prove. These cases rarely, if ever, have any direct evidence or “smoking gun”. They have to be patched together with bits and pieces of information that may only give a few pieces of the puzzle.
Some ways to avoid having your estate caught in a will contest include:
- Make sure your will complies with all of the signing requirements in your state.
- Make sure your loved ones know what you’ve put in your will. These might be difficult conversations if you’ve left someone out or have unequal distributions, but will minimize challenges in the future.
- Record you signing your will and record your witnesses. This may be an extreme step, but a video recording of you stating your wishes prior to signing your could be good proof that you were competent when you signed your will.