Feeling left out? Can you contest a Will?
My uncle promised me his car, but he’s died and the Will says nothing about the car. Do I have a right to it? How can I contest a Will?
This happens a lot. Somebody dies, the Will is published for all to see, and it doesn’t quite meet the expectations of family and loved ones. Sometimes there is a suspicion that something strange has been going on. There’s a sense that somebody worked on the individual, persuaded them to make some changes and updates, and all of a sudden the estate that was going to the children, is now going to the new person who has just appeared on the scene.
So what rights do you have? Can you contest a Will if it seems that something strange has been going on? Or if that promised item is not included in the Will?
Maybe you are ready to write your Will, but you want to leave some people out. How can you be sure that after you have written your Will it will not be challenged?
On what basis can a Will be Contested?
Wills can be contested in several different ways. While not following the proper formalities is one way to contest a Will, most will contests have to do with the personal condition of the decedent (the person who died). Some of the common reasons for putting together a successful challenge to a Will include:
The mental state or testamentary capacity of the decedent.
Testators, the people who make the Will in anticipation of death, must have testamentary capacity to make their Will. This means that they must be of “sound mind” at the time they prepare their Will. Testamentary capacity is a legal expression. Generally, courts in virtually all U.S. states will examine if the testator:
- Knew what it meant to make a Will. Did the testator understand he/she was creating a legal binding document that would control who would handle the estate and how the assets of the estate would be handled?
- Knew who would normally be provided for in the Will. Did the testator understand that Wills typically provide for a spouse and children so they will have some funds to function after death and someone will be named to look after minor children.
- Knew what he/she owned. Did the testator understand he/she had a home, bank accounts, retirement benefits, vehicles, personal assets, and probably some liabilities?
- Knew how to distribute the assets. Did the testator understand who normally gets the assets and that there could be exceptions to the normal transfer – if, for example, one child didn’t really need the money while another child had special needs.
Generally, the estate courts will need to be fairly sure that the testator really didn’t understand what was going on before a Will will be invalidated for lack of testamentary capacity. Medical evidence can help the court decide. For example, a doctor who certifies that the testator had advanced dementia could help substantiate a finding that the testator was not of sound mind. On the other hand, early stage dementia or having cancer would not normally invalidate a Will.
Note also that the testator doesn’t necessarily have to understand everything that is written in the Will. Some language in a Will can include tricky legal language with some “herein notwithstanding aforementioned” and other arcane language that we do not regularly use today. There may be some long sentences explaining trust provisions. The testator needs to know the general idea of what the document is doing and the power it wields without necessarily having to explain every single detail.
Contest a Will because of undue influence
This is a common ground by which to contest a Will. Generally, one relative will assert that a sister, brother, caregiver or someone in a position of trust, forced or pressured the testator to prepare a Will that favored the person doing the pressuring. The standard factors that a judge will review in undue influence cases are:
- An unusual distribution. If a relative who would normally be expected to get a share of the estate assets is excluded and another relative gets more than would be expected – that’s a red flag. If all spouse and children are excluded in favor of a personal caretaker, that’s another red flag. The intestate laws of the state where the testator died indicate what is normally expected. The testator may have good reasons for providing a distribution contrary than what was expected – so other factors must also be examined.
- There was a confidential relationship. Often seniors and those in ill health rely on a person who to take care of their physical and emotional needs. This confidential relationship makes the Will-maker susceptible to being pressured by this person in trust. The caretaker can be another family member or a non-relative.
- The person who had the confidential relationship with the testator is the one who benefited from the unusual distribution in the will. We saw this in the estate of Huguette Clark who left $30M to her nurse and half a million to each of her lawyer and accountant.
- The person who had the confidential relationship abused the trust. For example, the person in the trust position may have prevented the testator from seeing other members of the family or may have prevented the testator from reviewing his/her bank statements or assets.
Often, the evidence that someone benefited more than was expected is fairly easy to show. Confirming the trust relationship and that a person abused the trust is more difficult. In some cases, for example, a father may have left all his money to a daughter because the daughter was the only one who loved him and really cared for the father – while the sons or other daughters never even bothered to stop by or call.
A confidential relationship is often presumed if the person in the position of trust lived in the same home or apartment as the testator.
The Will failed to meet Will formalities
Each state has its own formalities. Some common requirements are:
- That the testator be at least 18 years of age. Some states allow someone to make a will if they were emancipated for any legitimate reason.
- That the Will does something substantial. This can include indicating who gets the assets, determining who will be the executor, or appointing someone to be child’s personal guardian.
- That there be witnesses. All states require that the will should have, at least, two adult witnesses. Witnesses should not be people who will benefit from the will. Some states may validate the Will but may then void the right of the witness to any assets under the Will.
- Be clearly dated. Undated Wills generally are not valid.
There are other considerations as well. Most Wills are typed or printed out by a computer. Handwritten wills that aren’t witnessed may be valid in some states but not in others. The test in handwritten Will disputes is whether the handwriting was that of the testator’s and the testator meant for the handwritten document to be identified as a Will. Handwritten Wills are also called holographic Wills.
Wills don’t normally need to be notarized. If the Will has a self-proving sworn statement attesting to the witness’s signature and that statement is made in front of a notary – then the witness may not be required to swear, after the person who made the Will dies, that the signature was indeed his/hers.
Another Will or a codicil to the Will
You may be able to contest a Will on the basis that the testator made a valid codicil (amendment to the Will) after the original Will was drafted. The Will can also be contested if the testator made a valid Will at a later date.
If the Will was properly made in the state where the testator permanently resided, then the Will is also valid in a state where the testator died or a state where the testator has assets. For example, a will by a Pennsylvania testator is valid in Florida if the Will-maker died in Florida and is valid in Connecticut if the testator had a vacation home in Connecticut.
Some Wills include a statement that the person was of sound mind when the Will was made and/or that the will was not made under any undue pressure. These statements are self-serving and carry no or little weight in Will contest proceeding.
In most states, the executor named in the Will seeks to validate the Will. The time limits to contest a Will can depend on whether the executor gave notice of the Will (shared the content of the Will with all interested parties). In most cases, the person who contests the will begins the contest soon after the testator dies.
Some reasons why you can’t contest a Will
It is also worth highlighting the common misconceptions around challenging a Will. Here are some myths;
I was promised something, but I didn’t receive it in the Will
You are out of luck. A verbal promise counts for nothing. Even if a person dies without a Will, you cannot claim anything on the basis of a verbal promise. Or even a written promise if it is outside of the Will.
The Will was written using an online service
Occasionally we hear from people with reservations about using a will writing service like the one at USLegalWills.com. There is a concern that by using a service like ours, the Will can be challenged. This is absolutely not the case. There is nothing special about our service that makes it more or less likely to be challenged. The final document looks exactly the same as a Will prepared by an estate planning attorney. As long as it is signed and witnessed correctly, it has full legal standing.
I deserve something
You may feel that you made a positive impact on somebody’s life. Maybe you cared for them in their most vulnerable years. Maybe as the only child of a person that has died, you feel that you have a right to inherit from their estate. But in fact, you cannot contest a Will just because you think you should have received everything by right. A testator can leave their estate to whomever they wish as long as they have provided for their spouse, minor children and any other dependants. In most US States adult children have no automatic rights to receive anything in a Will.
You should write your Will
Perhaps you were thinking of writing a Will but you wanted to be sure that nobody could challenge your intentions. You can prepare your Will directly online using our interactive online Will writing service at www.uslegalwills.com. The whole process takes about 20 minutes and costs $39.95.
If you have full mental capacity, and you sign your final document in the presence of two adult witnesses, then you have created a legal Last Will and Testament. There would be nothing about this document that would make it vulnerable to a challenge, even if you wanted to give everything to charity!
Tim Hewson is one of the founders of USLegalWills.com.
He has over 20 years of experience helping people to write their Will and other estate planning documents. He has been interviewed by many of the major news media outlets, and has contributed to articles in The New York Times, NY Metro Parents, U.S. News & World Report, and other leading publications. He has also contributed to a number of financial planning books.
Throughout his career, Tim has written extensively on the subject of Will writing and estate planning.
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