Let’s say someone isn’t happy with what they get, so they are planning on contesting the Will etc…
How hard is it for someone to win their case? Does it happen often? In other words, are Wills easily penetrated or not? If they are, what good are they? Sorry if my question is rather vague, but if I went into detail, you’d be reading for a while.
With the disclaimer that I have very little practical experience in estate law (“very little” = “none”), I think I’m safe in saying: It depends.
Specifically, it’s going to depend on what grounds the challenge asserts as a reason to break the will. “I just know Aunt Lucy wanted me to have the Porsche,” is not as likely a winner as “The law in this state requires that a will be witnessed by two people, and there are no witness signatures on this document that purports to be his will.”
Between those two extremes lie a vast gulf.
As to how often challenges are made and how often they succeed… I defer to someone with knowledge of the field.
I heard that the shortest legal will in the UK read “All to mother”.
I know that when a great-aunt of mine died, leaving nothing of real value, there were a couple of family members who insisted that they were meant to get e.g. a £20 brooch because “she promised it to me!”.
There was no legal basis for the claim, but they annoyed the executor (who was a family member) a lot.
“Not happy with what I got in the will” is almost always a surefire loser as a basis for challenge. Some states permit certain heirs to take against the will (the widow, for example). But taking against the will isn’t challenging it.
Wills are presumptively valid, so the the challenging party has an uphill battle. And as Bricker says, not all reasons are created equal.
That was pretty much the answer when I asked an attorney who specialized in probate. I was the executor, and halfway expected some legal challenge from some family members–which thankfully never materialized.
As others have said, the claim that you just know that gran’ma wanted you to have the farm is a looser and will probably be bounced on some sort of pretrial motion.
On the other hand, will contests based on a claim that gran’ma did not have testamentary capacity (i.e., she did not know what she had , who the “legitimate objects of her bounty” were or that she did not know who she wanted to give her stuff to) is productive of much litigation . Even more productive is the claim that Aunt Alice unduly influenced gran’ma to give her stuff to Aunt Alice instead of to you. The undue influence claim requires a persuasive showing that Aunt Alice and gran’ma had a confidential relationship, that Aunt Alice had the opportunity to guide gran’ma in her bequests and that gran’ma was susceptible to Aunt Alice’s machinations and manipulations. It is not the easiest case to prove but it certainly can be done.
In this state a will contest is an ordinary proceeding and can be tried to a civil jury of eight. The availability of a jury makes things a little easier if gran’ma was obviously delusional or clearly goofy in some other way or is Aunt Alice is an evil and grasping bitch who weaseled her way into gran’ma affections.
The catcher is that setting aside the whole will (as in the lack of testamentary capacity) or the gift to Aunt Alice (in the case of undue influence) may not do you much good since the result is an intestacy or partial intestacy in which the property goes to gran’ma heirs under the rules of intestate successions. The consequence is that the property may end up with gran’ma’s cousins, or Aunt Alice anyway, and not with you.
Is it possible/enforceable to put a clause in the will like “If anyone who is already getting something in this will contests it, they get nothing whatsoever and what they were getting goes to xxx.” just to cut down on nuisance lawsuits? Or can you put something like “I know Johnny will be annoyed about this will. I don’t care. Johnny was a jerk to me in life, and I want him to get nothing.” which will come into play if Johnny contests?
IANAL, but yes. I think most probate attorneys advise their clients to put a clause in voiding gifts to anyone who contests the will. When my grandmother died she explicitly disinherited one of my cousins “for reasons well known to him”, but she forgave all debts he had against her (she loaned him alot of money over the years). She also wrote a clause saying that if he contested the will he’d loose the debt forgivence.
Are probate attorneys even allowed to work on contigency? If not then the contester would still need to pay attorney’s fees win or loose.
Not a lawyer. I remember once hearing that one should make specific reference to a close relative in a will if that relative is to be disinherited. This to forestall any objections that “Grandma meant for me to have something, but just forgot.” Can someone confirm or correct?
There is a rebutable presumption that the testator ( the guy whose will it is) was competent and that the will accurately and fully expresses the testator’s intentions. This has to do with the burden of proof, the burden of persuasion. The extra language (To my ner-do-well nephew, Spavined, who has always wanted to be remembered in my will: Hi, Spavined) is nice but not strictly necessary.
There was a recent successful outcome in the UK for someone who contested a will. The dead person had tried to leave all his money to the Conservative party, but it was judged he was mentally ill. Story here :- Times Online
When my husband and I made out our wills, we specifically wanted to exclude his father and his family from getting anything. Our lawyer had us put in this section:
Quote from our wills, under the Duration and Distribution of Trust Section:
“If my spouse and all of my children and their descendants fail to survive me, I give the residue one half to my heirs and one half to my spouse’s heirs as though we had such died intestate as a resident of Michigan, except that Husband’s Father’s Name and his relatives shall not receive anything by way of this devise, it is my intention to specifically omit Husband’s Father’s Name from my Will and that he take nothing from this Will.”
But doesn’t that depend on whether there was a previous will? For instance, suppose Uncle Old Guy made a will in 2000, leaving his estate equally to his five nieces and nephews, and then went bonkers (legal-medico term ) in 2007 and did a new will in 2007, leaving it all to the British Conservative Party (to use the example previously given). The 2007 will explicitly revokes the 2000 will, so the nieces and nephews are out. But if he lacked testamentary capacity at the time of making the 2007 will, doesn’t that mean the revocation clause is also void, and the 2000 will still valid, so the nieces and nephews still collect under the 2000 will?
The preceding applies mostly to cases involving will problems other than testamentary incompetency. The second link quotes a case that supports your point. “Since the 1993 will was invalid because of Mizell’s incompetency, it could not revoke the 1978 will,” but then goes on to suggest the case might be different if the decedent had torn up his previous will. I don’t think it could be. “The same mental capacity as is required to make a will is necessary to make a revocation of the will effective.” http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=ia&vol=app\20000913\99-1858&invol=1