Will contest
A will contest, in the law of property, is a formal objection raised against the validity of a will, based on the contention that the will does not reflect the actual intent of the testator or that the will is otherwise invalid. Will contests generally focus on the assertion that the testator lacked testamentary capacity, was operating under an insane delusion, or was subject to undue influence or fraud. A will may be challenged in its entirety or in part.
Courts and legislation generally feel a strong obligation to uphold the final wishes of a testator, and, without compelling evidence to the contrary, "the law presumes that a will is valid and accurately reflects the wishes of the person who wrote it".
A will may include an in terrorem clause, with language along the lines of "any person who contests this will shall forfeit his legacy", which operates to disinherit any person who challenges the validity of the will. Such no-contest clauses are permitted under the Uniform Probate Code, which most American states follow at least in part. However, since the clause is within the will itself, a successful challenge to the will renders the clause meaningless. Many states consider such clauses void as a matter of public policy or valid only if a will is contested without probable cause.
This article mainly discusses American law and cases. Will contests are more common in the United States than in other countries. This prevalence of will contests in the U.S. is partly because the law gives people a large degree of freedom in disposing of their property and also because "a number of incentives for suing exist in American law outside of the merits of the litigation itself". Most other legal traditions enforce some type of forced heirship, requiring that a testator leave at least some assets to their family, particularly the spouse and children.
Standing to contest will
Typically, standing in the United States to contest the validity of a will is limited to two classes of persons:- Those who are named on the face of the will ;
- Those who would inherit from the testator if the will was invalid
Under such facts:
- Chandler can contest the will as the product of fraud in the inducement, because if the will is invalid, he will inherit Monica's property, as the surviving spouse.
- Ross can contest the will as the product of Chandler's undue influence, as Ross will inherit Monica's property if Chandler's behavior disqualifies Chandler from inheriting.
- Rachel has standing to contest the will, as she is named in the document, but she will not be permitted to submit any evidence as to the mistake because it is not an ambiguous term. Instead, she will have to sue Monica's lawyer for legal malpractice to recover the difference.
- Finally, neither Joey nor Phoebe is someone who stands to inherit from Monica, nor is either named in the will, and so both are barred from contesting the will altogether.
Grounds for contesting will
Lack of testamentary capacity
Lack of testamentary capacity or disposing mind and memory claims are based on assertions that the testator lacked mental capacity when the will was drafted, and they are the most common types of testamentary challenges. Testamentary capacity in the United States typically requires that a testator has sufficient mental acuity to understand the amount and the nature of the property, the family members and the loved ones who would ordinarily receive such property by the will, and how the will disposes of such property. Under this low standard for competence, one may possess testamentary capacity but still lack mental capacity to sign other contracts. Furthermore, a testator with serious dementia may have "lucid periods" and then is capable of writing or modifying a will.Other nations like Germany may have more stringent requirements for writing a will. Lack of mental capacity or incompetence is typically proven by medical records, irrational conduct of the decedent, and the testimony of those who observed the decedent at the time the will was executed. Simply because an individual has a form of mental illness or disease, undergoes mental health treatment after repeated suicide attempts, or exhibits eccentric behavior, does not mean the person automatically lacks the requisite mental capacity to make a will.
Undue influence
typically involves the accusation that a trusted friend, relative, or caregiver actively procured a new will that reflects that person's own desires rather than those of the testator. Such allegations are often closely linked to lack of mental capacity: someone of sound mind is unlikely to be swayed by undue influence, pressure, manipulation, etc. As it is required for invalidation of a will, undue influence must amount to "over-persuasion, duress, force, coercion, or artful or fraudulent contrivances to such a degree that there is destruction of the free agency and will power of the one making the will.Mere affection, kindness or attachment of one person for another may not of itself constitute undue influence." For example, Florida law gives a list of the types of active procurement that will be considered in invalidating a will: presence of the beneficiary at the execution of the will; presence of the beneficiary on those occasions when the testator expressed a desire to make a will; recommendation by the beneficiary of an attorney to draw the will; knowledge of the contents of the will by the beneficiary prior to execution; giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will; securing of witnesses to the will by the beneficiary; and safekeeping of the will by the beneficiary subsequent to execution.
In most U.S. states, including Florida, if the challenger of a will is able to establish that it was actively procured, the burden of proof shifts to the person seeking to uphold the will to establish that the will is not the product of undue influence. However, undue influence is notoriously difficult to prove, and establishing the someone has the means, motive and inclination to exert undue influence is not enough to prove that the person in fact exerted such influence in a particular case. However, attorneys are often held to a higher standard and are suspect if they assist in drafting a will that names them as a beneficiary.
In many jurisdictions, a legal presumption of undue influence arises when there is a finding of a confidential relationship, the active procurement of the will by the beneficiary and a substantial benefit to that beneficiary, such as if a testator leaves property to the attorney who drew up the will. However, that is dependent on the circumstances of such a relationship and typically the burden is initially on the person contesting to show undue influence. Proving undue influence is difficult. In Australia, a challenger must show that the free will of the testator has been overborne by words and actions of the alleged wrong doer, to such an extent that the deceased's freedom of testation has been taken away.
Insane delusion
is another form of incapacity in which someone executes a will while strongly holding a "fixed false belief without hypothesis, having no foundation in reality." Other courts have expanded on this concept by adding that the fixed false belief must be persistently adhered to against all evidence and reason, and the irrational belief must have influenced the drafting or provisions of the will.In Florida, one of the most-often cited court rulings on insane delusion is from 2006. In this case, the decedent executed a new will in 2005 in the hospital with severe pain and under the influence of a strong medication. She died the next day. The new will disinherited the caretaker and left the decedent's estate to several charities. The caretaker asserted that the decedent was suffering from an insane delusion at the time the will was executed and that she thus lacked testamentary capacity. The decedent's physicians testified regarding the medication that the decedent was taking and how it had changed her personality. A psychiatrist who saw the decedent opined that she was delusional when she stated that the caretaker had abandoned her and had killed her dog. To the contrary, witnesses and evidence supported the position that the caretaker visited the decedent in the hospital every day, and the caretaker gave credible testimony that she was continuing to care for the dog. Accordingly, the court set aside the will as invalid based upon insane delusion.
Duress
involves some threat of physical harm or coercion upon the testator by the perpetrator that caused the execution of the will.Fraud
There are four general elements of fraud: false representations of material facts to the testator; knowledge by the perpetrator that the representations are false; intent that the representations be acted upon and resulting injury. There are two primary types of fraud: fraud in the execution,, and fraud in the inducement.Technical flaws
A will contest may be based upon alleged failure to adhere to the legal formalities required in a particular jurisdiction. For example, some states require that wills must use specific terminology or jargon, must be notarized, must be witnessed by a certain number of persons, or witnessed by disinterested parties who are not relatives, inherit nothing in the will, and are not nominated as an executor. Additionally, the testator and witnesses must generally sign the will in each other's sight and physical presence.For example, in Utah, a will must be "signed by the testator or in the testator's name by some other individual in the testator's conscious presence and by the testator's direction; and... signed by at least two individuals, each of whom signed within a reasonable time after he witnessed either the signing of the will... or the testator's acknowledgment ." In a Pennsylvania case, the wills of a husband and wife were invalidated because they accidentally signed each other's wills.