How hard is it for a party to contest a Will and win?

[Gfactor]

@coffeecat

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)?

You don’t have a pre-existing “special relationship” with the salesman. http://www.csj.org/infoserv_articles/nievod_abraham_undue_influence_law.htm Ans not just any influence is “undue.” Otherwise just about every transaction could be set aside.

What usually must be shown to make out a case of undue influence is:

“a fraudulent influence over the mind and will of another to the extent that the professed action is not freely done but is in truth the act of the one who procures the result.” Id. “‘There are four general elements of undue influence: (1) a person who is subject to influence; (2) an opportunity to exert influence; (3) a disposition to exert influence; and (4) a result indicating undue influence.’” http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=nc&vol=appeals2005/&invol=041266-1

and see, caselaw.lp.findlaw.com/data2/wyomingstatecases//1998/98-84.pdf

[Northern_Piper]

@muldoonthief

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?

The validity of this sort of clause depends on the law of the particular jurisdiction. For example, Anglo-Canadian common law tends to frown on penalty clauses generally, whether in wills or contracts. The problem with a clause like this is that it’s not restricted to “nuisance suits.” What about the case of an elderly testator who has come under the undue influence of a particular person? or a testator who is suffering from mental illness? The common law generally allows potential beneficiaries to bring a challenge to a will in court. On what basis can a testator immunise his will from the common law of probate?

As well, if a jurisdiction has passed a law authorising courts to hear applications to vary a will, such a clause might be held to be contrary to the public policy set out in the statute, and therefore void.

Here’s one example of a Canadian court refusing to enforce an in terrorem clause: Bellinger v. Fayers, Nuytten et al, 2003 BCSC 563, a decision of the Supreme Court of British Columbia, which held that such a clause was void on public policy grounds, because it conflicted with the policy set out in the B.C. Wills Variation Act. (I don’t know enough about the issue to say if courts in other provinces would reach the same conclusion; would depend in part on the common law, and in part on the particular statutes passed by the other provinces.)

So, the answer to this question depends, as always, on the law of the particular jurisdiction, coupled with the facts of the particular case. You’d have to consult with a lawyer skilled in probate law in the particular jurisdiction for an answer.

[Gfactor]

And some jurisdications will enforce the clause, but only if the contesting party lacked good faith or probable cause:

Courts have generally declined to enforce no-contest clauses where the beneficiary challenging the will acted in good faith and had probable cause for the challenge. See Colorado National Bank v. McCabe , 143 Colo. 21, 353 P.2d 385 (1960) (no-contest clause did not apply to a beneficiary who had challenged a will provision as violative of the rule against perpetuities, where the petition for construction of the will was made with probable cause); see also In re Estate of Campbell , 876 P.2d 212 (Kan. App. 1994) (adopting rule of Restatement (Second) of Property §9.1 (1981), which states that no-contest provisions are valid “unless there was probable cause for making the contest or attack”); In re Estate of Seymour , 600 P.2d 274 (N.M. 1979) (no-contest provisions are not effective to disinherit a beneficiary who has contested a will in good faith and with probable cause to believe the will was invalid); In re Will of Keenan , 205 N.W. 1001 (Wis. 1925) (requiring forfeiture where legatee contested will upon probable cause and in good faith is contrary to public policy).

“Probable cause,” in the context of attacks on wills, is defined as “the existence, at the time of the initiation of the proceeding, of evidence which would lead a reasonable person, properly informed and advised, to conclude that there is a substantial likelihood that the contest or attack will be successful.” Restatement (Second) of Property, supra , §9.1 comment j; see In re Estate of Campbell, supra (applying Restatement definition). One factor which bears on the existence of probable cause is that the beneficiary relied upon the advice of disinterested counsel sought in good faith after a full disclosure of the facts. See Restatement (Second) of Property, supra , §9.1 comment j.

The good faith-probable cause exception to enforcement of a no-contest clause has been applied in cases where the asserted attack or contest consists of offering a later will for probate. See In re Estate of Westfahl, supra , 674 P.2d at 25 (“An attempt in good faith to probate a later purported will, spurious in fact, but believed to be genuine by the one presenting it for probate, does not render the offeror subject to the forfeiture provisions of no contest clauses if he/she has probable cause to believe that the instrument is genuine and entitled to probate”); In re Estate of Bergland, supra (although seeking to probate a later will known to be false would amount to a contest, an attempt made in good faith to probate a later will that was spurious in fact but was believed to be genuine by its proponent did not require forfeiture); cf. In re Estate of Kirkholder, supra (ordering forfeiture pursuant to no-contest clause where beneficiary did not establish that she offered second will in good faith and with probable cause to believe it was entitled to probate). In these cases, a significant factor supporting a finding of probable cause was that the person offering the later will for probate was under a statutory duty to do so. See In re Estate of Westfahl, supra ; In re Estate of Kirkholder, supra .

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=co&vol=1998app\ct121013&invol=1

[Cyberhwk]

@alphaboi867

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.

Jesus, your granny was pretty hardcore. :eek:

Then again…

@Satchmo

I often thought that was the reason for the whole “my ingrate nephew is to be awarded the sum of one dollar.” This proves the IN was not ‘forgotten’.

Going through some very old albums there was one of my obscure relatives’ will where he promised to give someone a dollar, “AND NOT A PENNY MORE!!!”

[diggleblop]

OK, I have two other questions:

**In the State of Florida, how long after the death of the Will Holder does the opposing party have to contest said Will? **

What is the maximum percentage the Executor of The Will can charge to the Estate for his services of handling the Will?

[diggleblop]

and sorry about the capitalization, as someone stated above, I have been involved with this issue for so long that I’m used to typing it that way.

[Northern_Piper]

diggleblop, I noticed that you’ve not had any replies to your questions, probably for two reasons. The first is that they’re very specific questions about the probate law of Florida, so unless there’s a Doper on the boards who practises probate law in Florida, you’re not likely to get an answer.

The second reason is that the flavour of your questions suggest that you’re asking because of a real situation, not some hypothetical. Lawyers won’t answer those sorts of questions on a message board, because our codes of conduct say that we are only to give legal advice about a specific issue after getting full account of the facts from the client, and only if we are familiar with the law in issue.

Your best bet is to consult a lawyer who practises probate law in Florida. If you don’t know of a lawyer who does, contact the state or local bar association - they normally operate referral services, and can give a list of lawyers who practise in a particular field in your area.