# How hard is it for a party to contest a Will and win? **URL:** \ **Category:** Factual Questions\ **Created:** [October 18, 2007, 6:09pm UTC](https://boards.straightdope.com/t/how-hard-is-it-for-a-party-to-contest-a-will-and-win/423197 "2007-10-18T18:09:03Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Tim\_T-Bonham.net](https://avatars.discourse-cdn.com/v4/letter/t/46a35a/32.png) [@Tim\_T-Bonham.net](https://boards.straightdope.com/u/Tim_T-Bonham.net)\ **Post date:** [October 19, 2007, 5:06am UTC](https://boards.straightdope.com/t/how-hard-is-it-for-a-party-to-contest-a-will-and-win/423197/21 "2007-10-19T05:06:07Z")
[QUOTE=Plynck] 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? [/QUOTE] Yes, my lawyer said that, too. He had me include the following language: > [@](#): > > I have intentionally omitted my parents from this Will. … These omissions were not occasioned by accident or mistake. He said that they were not strictly necessary, since a will is presumed valid, but including such a statement will make it clear that I did not “just forget”, thus making it harder to challenge the will. ---
**Author:** ![LSLGuy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lslguy/32/5813_2.png) [@LSLGuy](https://boards.straightdope.com/u/LSLGuy)\ **Post date:** [October 19, 2007, 12:45pm UTC](https://boards.straightdope.com/t/how-hard-is-it-for-a-party-to-contest-a-will-and-win/423197/22 "2007-10-19T12:45:10Z")
IANA Estate Attorney but my wife is, practicing in 3 states. Her standard templates include the _in terrorem_, plus a separate blanket statement that anyone not mentioned was not mentioned on purpose. That avoids singling out like “my useless cousin Harry gets nothing”, but puts a pretty high bar in front of Harry claiming he was simply forgotten. In the states where she does her thing, the proessional concensus is that those two techniques together have generally been effective at precluding litigation, with few challenges filed & almost none succeeding absent another grounds. ---
**Author:** ![Spavined\_Gelding](https://avatars.discourse-cdn.com/v4/letter/s/958977/32.png) [@Spavined\_Gelding](https://boards.straightdope.com/u/Spavined_Gelding)\ **Post date:** [October 19, 2007, 12:54pm UTC](https://boards.straightdope.com/t/how-hard-is-it-for-a-party-to-contest-a-will-and-win/423197/23 "2007-10-19T12:54:11Z")
[QUOTE=Northern Piper] 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? [/QUOTE] Northern, there is some argument about that in my state. The contention seems to be that a person could be sufficiently competent to _revoke_ a prior will but not sufficiently competent to make a present bequest. It doesn’t make a lot of sense to me but I suppose that the answer in any given case is fact specific. Consider also the situation where the previous will has been destroyed – that puts you right into the whole _proof of a lost will_ mess. In the undue influence situation the answer is pretty simple. In the absence of a bequest of the residuary (everything not otherwise given away) you have a partial intestacy. When the will gives everything to evil Aunt Alice you have a total intestacy, not a reversion to some prior will. ---
**Author:** ![Fir\_na\_tine](https://avatars.discourse-cdn.com/v4/letter/f/a587f6/32.png) [@Fir\_na\_tine](https://boards.straightdope.com/u/Fir_na_tine)\ **Post date:** [October 19, 2007, 12:55pm UTC](https://boards.straightdope.com/t/how-hard-is-it-for-a-party-to-contest-a-will-and-win/423197/24 "2007-10-19T12:55:12Z")
[QUOTE=LSLGuy] IANA Estate Attorney but my wife is, practicing in 3 states. [/QUOTE] What does she think of the will templates being promoted by the likes of Suze Orman? From what I’ve read lots of folks are buying into her site to download them. ---
**Author:** ![anson2995](https://avatars.discourse-cdn.com/v4/letter/a/c77e96/32.png) [@anson2995](https://boards.straightdope.com/u/anson2995)\ **Post date:** [October 19, 2007, 1:29pm UTC](https://boards.straightdope.com/t/how-hard-is-it-for-a-party-to-contest-a-will-and-win/423197/25 "2007-10-19T13:29:47Z")
[Jerry Garcia’s will](http://www.courttv.com/archive/legaldocs/newsmakers/wills/garcia.html) was interesting. Not only did include a “no contest” clause to revoke bequeaths to people who contested the will, but it also included a clause for any alleged children who might come forward that he had not been aware of at the time of his death, or any one else. > [@](#): > > if any person shall claim and establish any right to participate in my estate other than as provided in this Will, whether as heir or in any other capacity whatsoever, I give and bequeath to each such person the sum of One Dollar ($1.00). ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [October 19, 2007, 1:38pm UTC](https://boards.straightdope.com/t/how-hard-is-it-for-a-party-to-contest-a-will-and-win/423197/26 "2007-10-19T13:38:09Z")
[QUOTE=LSLGuy] IANA Estate Attorney but my wife is, practicing in 3 states. Her standard templates include the _in terrorem_, plus a separate blanket statement that anyone not mentioned was not mentioned on purpose. That avoids singling out like “my useless cousin Harry gets nothing”, but puts a pretty high bar in front of Harry claiming he was simply forgotten. In the states where she does her thing, the proessional concensus is that those two techniques together have generally been effective at precluding litigation, with few challenges filed & almost none succeeding absent another grounds. [/QUOTE] I don’t doubt what she says about precluding litigation, probate lawyers and probate judges seem to love that stuff. As a general litigator who has handled a few will contests, I’d have a pretty good time with the fact that the blanket statement was part of a template–sort of robs it of any persuasive force at all. Q: Mr. Drafter,\* you’ve prepared how many wills in your career? A: 5,000 or so. Q: How many of them contained a clause like this? A: All of them. Q: So every single client for whom you’ve prepared a will has requested this clause? A: No. I just put it in there as boilerplate. At which point, questions like this become relevant: Q: Did you discuss with the testator the fact that Mr. Johnson was an heir apparent, and that by including this language, the testator was disinheriting him? \*There’s an exception to the attorney client privilege for will contests in most jurisdictions. Regarding no-contest (or _in terrorem_) clauses, it depends where you are: > [@](#): > > State probate courts have taken an inconsistent approach to in terrorem provisions in wills. Beyer says that a few states (notably Florida) do not recognize the clause at all. While most states do honor and enforce in terrorem provisions, they do so with varying degrees of rigidity based on case law and/or state statutes. Some states, for instance, will allow an unsuccessful legal challenge without disinheriting the plaintiff if the suit was brought in good faith and with probable cause. > **[Personal Finance Calculators | Bankrate.com](https://www.bankrate.com/personal-finance/calculators/)** > > Bankrate.com's personal finance calculators can help you figure out how much to save for college, what it costs to raise your child, how to budget your money, how much to save for retirement and much more. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [October 19, 2007, 1:55pm UTC](https://boards.straightdope.com/t/how-hard-is-it-for-a-party-to-contest-a-will-and-win/423197/27 "2007-10-19T13:55:52Z")
I actually had a will contest between a niece and nephew. The nephew was the beneficiary of the last will, the niece was the beneficiary of the will before that. What neither of them would admit was that the testator had been batty for a while, and neither niece nor nephew had clean hands. The testator had written no less than 10 wills in as many years, each time changing the primary beneficiary to whichever of them took her to the lawyer’s office, each claimed undue influence and lack of testamentary capacity. They were both right. 😃 By the way, here’s a pretty good discussion of the pretermission issues in the Anna Nicole Smith case: [http://writ.news.findlaw.com/grossman/20070226.html](http://writ.news.findlaw.com/grossman/20070226.html) ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 19, 2007, 2:35pm UTC](https://boards.straightdope.com/t/how-hard-is-it-for-a-party-to-contest-a-will-and-win/423197/28 "2007-10-19T14:35:28Z")
See why I stuck to criminal law? Simple, easy, straightforward. None of this crazy stuff. 🙂 ---
**Author:** ![Campion](https://avatars.discourse-cdn.com/v4/letter/c/4491bb/32.png) [@Campion](https://boards.straightdope.com/u/Campion)\ **Post date:** [October 19, 2007, 2:48pm UTC](https://boards.straightdope.com/t/how-hard-is-it-for-a-party-to-contest-a-will-and-win/423197/29 "2007-10-19T14:48:17Z")
[QUOTE=Bricker] See why I stuck to criminal law? Simple, easy, straightforward. None of this crazy stuff. 🙂 [/QUOTE] Oh, yeah? Guy walks into the darkened bedroom, shoots what he thinks is his sworn enemy, turns out it’s just a teddy bear in the bed. Has he committed a crime? ---
**Author:** ![ENugent](https://avatars.discourse-cdn.com/v4/letter/e/4af34b/32.png) [@ENugent](https://boards.straightdope.com/u/ENugent)\ **Post date:** [October 19, 2007, 5:11pm UTC](https://boards.straightdope.com/t/how-hard-is-it-for-a-party-to-contest-a-will-and-win/423197/30 "2007-10-19T17:11:56Z")
At least in both of the states I am licensed in, it’s worth noting that the _in terrorem_ clause doesn’t necessarily mean that it’s not worth challenging the will. It just ups the stakes. If the challenge succeeds, the whole will is set aside, including the _in terrorem_, and the challenger gets whatever he would get under the old will or intestate succession, whichever is appropriate. If it loses, he loses whatever he might have gotten under the will if he’d kept his mouth shut. So it doesn’t do much to prevent people who got cut off with a dollar from challenging if they wish. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [October 19, 2007, 5:22pm UTC](https://boards.straightdope.com/t/how-hard-is-it-for-a-party-to-contest-a-will-and-win/423197/31 "2007-10-19T17:22:50Z")
[QUOTE=Campion] Oh, yeah? Guy walks into the darkened bedroom, shoots what he thinks is his sworn enemy, turns out it’s just a teddy bear in the bed. Has he committed a crime? [/QUOTE] …And after being acquitted, he is sued by the parents of the child to whom the teddy bear belonged for willfully traumatizing the kid by shooting his bear. (If he instead commits wrongful death on someone’s pet turtle, can they sue him for tortoisely causing the death of their pet?) ---
**Author:** ![Lazlo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lazlo/32/9678_2.png) [@Lazlo](https://boards.straightdope.com/u/Lazlo)\ **Post date:** [October 20, 2007, 4:53am UTC](https://boards.straightdope.com/t/how-hard-is-it-for-a-party-to-contest-a-will-and-win/423197/32 "2007-10-20T04:53:01Z")
[QUOTE=anson2995] [Jerry Garcia’s will](http://www.courttv.com/archive/legaldocs/newsmakers/wills/garcia.html) was interesting. Not only did include a “no contest” clause to revoke bequeaths to people who contested the will, but it also included a clause for any alleged children who might come forward that he had not been aware of at the time of his death, or any one else. [/QUOTE] My will has that same clause almost verbatim. ---
**Author:** ![Argent\_Towers](https://avatars.discourse-cdn.com/v4/letter/a/e8c25b/32.png) [@Argent\_Towers](https://boards.straightdope.com/u/Argent_Towers)\ **Post date:** [October 20, 2007, 5:06am UTC](https://boards.straightdope.com/t/how-hard-is-it-for-a-party-to-contest-a-will-and-win/423197/33 "2007-10-20T05:06:35Z")
[QUOTE=diggleblop] 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. [/QUOTE] Why are you capitalizing the word will? ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [October 20, 2007, 5:46am UTC](https://boards.straightdope.com/t/how-hard-is-it-for-a-party-to-contest-a-will-and-win/423197/34 "2007-10-20T05:46:47Z")
[QUOTE=Polycarp] (If he instead commits wrongful death on someone’s pet turtle, can they sue him for tortoisely causing the death of their pet?) [/QUOTE] No, but if he beats their cetacean he’ll be accused of defeating the porpoise! ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [October 20, 2007, 6:31am UTC](https://boards.straightdope.com/t/how-hard-is-it-for-a-party-to-contest-a-will-and-win/423197/35 "2007-10-20T06:31:50Z")
[QUOTE=Campion] And _this_, my friends, is why I wish I were smart enough to be an estates lawyer. [/QUOTE] Just a humble barrister, ma’am, trying to work the angles. 🙂 ---
**Author:** ![Muffin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/muffin/32/4341_2.png) [@Muffin](https://boards.straightdope.com/u/Muffin)\ **Post date:** [October 20, 2007, 9:30am UTC](https://boards.straightdope.com/t/how-hard-is-it-for-a-party-to-contest-a-will-and-win/423197/36 "2007-10-20T09:30:09Z")
[QUOTE=Gfactor] The testator had written no less than 10 wills in as many years, each time changing the primary beneficiary to whichever of them took her to the lawyer’s office, each claimed undue influence and lack of testamentary capacity. They were both right. 😃 [/QUOTE] Did any of the solicitors get sued? ---
**Author:** ![Muffin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/muffin/32/4341_2.png) [@Muffin](https://boards.straightdope.com/u/Muffin)\ **Post date:** [October 20, 2007, 10:34am UTC](https://boards.straightdope.com/t/how-hard-is-it-for-a-party-to-contest-a-will-and-win/423197/37 "2007-10-20T10:34:05Z")
[QUOTE=Argent Towers] Why are you capitalizing the word will? [/QUOTE] There is a tendancy to capitalize the names of documents and the titles of the parties, for example: “The Plaintiff executed his Last Will and Testament on 23 January 2007.” I realize that it runs contrary to modern English usage, but once one gets used to it, it makes scanning through long texts a little easier. Early on, I had a clerk assigned to me who capitalized most nouns, many adjectives, and the occasional verb. Reading her drafts was like suffering Chinese water torture. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [October 20, 2007, 1:58pm UTC](https://boards.straightdope.com/t/how-hard-is-it-for-a-party-to-contest-a-will-and-win/423197/38 "2007-10-20T13:58:31Z")
[QUOTE=Muffin] Did any of the solicitors get sued? [/QUOTE] Nope. The two of them were suing each other over a rather meager estate. Neither needed the money. The point of the excercise was, apparently, to prove who really was auntie’s favorite by preventing the other person from taking anything. Once I realized the truth, I wanted out of the case. As it turned out there was a pretty good case for a professional grievance against opposing counsel (I’ll call him A), the other guys were pretty much just innocent boobs. Opposing counsel did the following: 1. Filed a petition that said he was surprised by this last will (the one my client had), and that the court, during a proceeding the decedent’s life, had found her “incompetent.” Actually, she was in a voluntary conservatorship (she was legally blind, and in such cases a person can consent to have someone else manage their affairs) and there had been some litigation over a lifetime transfer of a bond. After I’d managed to settle the case, I finally received a transcript of that hearing (in front of the same judge who was hearing the will contest), which revealed three things: A not only knew of the will, but had held it in his hand and cross-examined the decedent about it; the hearing had not resulted in any sort of finding, the parties had settled and there was no formal order prepared; the judge had expressly rejected A’s claim that the will was invalid, noting (correctly) that one can’t determine the validity of a will until the drafter dies. 2. He also filed a frivolous motion to disqualify my client as administrator of the estate based in his client’s dislike for him. When he lost the motion, he tried to win it informally. He was buddies with the public administrator, who was in charge of the conservatorship. I later took that guy’s deposition because it had taken him four months to transfer the funds to my client when that was supposed to happen immediately. It turns out, A, had sent a defamatory letter to the guy, asking him to hold on to the money indefinitely because my client was unreliable. In his letter, A failed to mention that he’d already asked the judge to replace my client as testator and lost. That was a fun deposition: Q: So what happens after a protected person in a conservatorship dies? A: My tenure as administrator ends. Q: When you are no longer administrator do you have any right to hold on to the assets of the protected person-now decedent? A: Only until an estate is opened. Q: When did that happen? A: Four months ago. Q: And as an attorney, what’s your ethical obligation with respect to property that doesn’t belong to you or a client of yours once you learn who should rightfully have it? A: ummm . . . . . Q: Let me help you out there: > [@](#): > > Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer \*\*shall promptly deliver \*\* to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property. > **[legal ethics](https://www.law.cornell.edu/wex/legal_ethics)** A: I suppose I should have promptly sent it to your client once I’d received his letters. Q: So you were obligated to turn that money over, but you decided not to . . . [There was a whole other section where it became clear that he didn’t really even understand his role as administrator and that he was never made aware that it was a voluntary conservatorship] 1. He claimed he had medical records that established that the decedent had already been determined to be incompetent by a psychiatrist when she wrote the last will. The psychiatrist had vanished by the time of this proceeding. When I sent him a discovery request for the medical records, he claimed work product. When he lost that motion, it turned out he really didn’t have them. Of course, we drew the probate judge that every probate lawyer in town knew was incompetent (and yet nobody ever made an effort to get him off the bench or even to contest his reelection campaigns). So I had an opposing lawyer who couldn’t tell the truth from fiction, a bunch of retired or dead lawyers as potential witnesses, a useless judge, and a client who didn’t want me to know what really happened anyway. What to do? Settle. My dad (for whom I worked at the time) wanted me to just keep litigating the case until we’d exhausted the funds with our fees. I refused, confronted my client with what I’d learned (he acted surprised), and eventually convinced him to accept a settlement in which neither of the manipulative freaks got any money. The lawyers both took reduced fees, and the remaining estate (only $10K) went to charity. Did I ever tell you the story about the case I had involving a fee tail? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 20, 2007, 2:17pm UTC](https://boards.straightdope.com/t/how-hard-is-it-for-a-party-to-contest-a-will-and-win/423197/39 "2007-10-20T14:17:40Z")
[QUOTE=Campion] Oh, yeah? Guy walks into the darkened bedroom, shoots what he thinks is his sworn enemy, turns out it’s just a teddy bear in the bed. Has he committed a crime? [/QUOTE] Pshaw. Piece of cake. We’ve done this one, or close variants, on the boards before. This used to be more interesting, when the distinction between legal, hybrid, and factual impossibility was more widespread and accepted. Most jurisdictions have explicitly or implicitly abandoned the distinction – the Eighth Circuit’s eloquent statement of the problem: “…beyond the logical problem is the pragmatic: the difficulty of categorization. The tidy dichotomy of the theoretician becomes obscure in the courtroom.” (US v. Darnell, 545 F.2d 595, 597, 8th Cir. 1976) But briefly: legal impossibility exists when the law does not prohibit the result the actor seeks, even if he believes it does. Factual impossibility exists when the result the actor seeks is a crime, but because of some circumstance associated with the elements of the crime, beyond his control or outside his knowledge, he fails to complete all the elements of the crime. “Hybrid impossibility” exists when a factual mistake exists with respect to the legal status of an associated circumstance that constitutes an element of the charged offense. Today’s general principles lean towards the idea that punishing such crimes as _attempt_ is justified under the general theory supporting inchoate crimes: the accused plainly manifested his willingness to commit the crime, and but for a lucky accident would have committed the crime. So – if the finder of fact believes each and every element of the crime, such as you’ve laid out above, then he’s guilty of attempted murder. Plus other LIOs as may exist, like burglary, trespass, discharge of a firearm inside city limits, damage to private property, and intentional infliction of bullets on a stuffed animal. See? Piece of cake. ---
**Author:** ![coffeecat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/coffeecat/32/3405_2.png) [@coffeecat](https://boards.straightdope.com/u/coffeecat)\ **Post date:** [October 20, 2007, 3:46pm UTC](https://boards.straightdope.com/t/how-hard-is-it-for-a-party-to-contest-a-will-and-win/423197/40 "2007-10-20T15:46:00Z")
Maybe I don’t understand “undue influence.” What’s the difference between breaking a will because of undue influence of a relative, and saying that I don’t want to go through with a signed sales contract because of undue influence of the salesman (which I think would be laughed out of court)? [Previous page](https://boards.straightdope.com/t/how-hard-is-it-for-a-party-to-contest-a-will-and-win/423197.md?page=1) [Next page](https://boards.straightdope.com/t/how-hard-is-it-for-a-party-to-contest-a-will-and-win/423197.md?page=3)