If a will exists, what permits someone to contest it, and how much time after the person dies can the will be contested?
The particular scenario I’d like to discuss is the following:
A new child is born into the family, however the old will of the grandparent is not updated to reflect this. The grandparent’s will divides the estate into 3 equal parts, all the money going to the three grandchild already here. Since the new, fourth grandchild was born before the will could be updated to reflect the child (dividing the estate into 4 parts instead of 3), could the will be contested on the grounds that the newly born grandchild will not receive an equal amount of the estate? Or since the grandparent just up and died before updating the will, is the new grandchild out of luck?
If you have any questions to ask to clarify any parts of this scenario, please ask.
*** I understand that any legal advice on this board is NOT to be considered correct and that any real legal advice needed should be sought from an actual lawyer licensed to practice in the state of jurisdiction. **
I’m sure the lawyers will show up shortly to address the specifics of contesting the will, but…
A properly-written will would anticipate such things, by dividing the estate “equally among living grandchildren” instead of “in three parts for my three grandchildren.” When a will is contested, the judge will not only look at the exact phrasing, but attempt to divine the intent of the document. The clearer the will, the less likely a challenge will succeed.
Is the estate only going to the grandchildren? If so, more questions follow:
(a) How do the parents of the grandchildren (i.e. Grandfather’s kids) feel about this? Is there a chance they may challenge the will, claiming their own share(s)?
(b) How old are the grandchildren? If any are minors, then…
Was the will drawn up by a lawyer? Or did Grandfather write his own (i. e. are we dealing with a holographic will)? Note that I’m tending to think the latter, as most, if not all, lawyer-drafted wills would anticipate changes occurring in the estate and the number of beneficiaries (as Gary notes). But it would be nice to know for sure.
How much time passed between the birth of the fourth grandchild and Grandfather’s death? Would it be reasonable to infer that Grandfather intended to update his will but did not due to illness, etc.? (This is related to Gary’s point about intent.)
The answers to these questions will help fill in the blanks; but even then, the answer to your question may not be apparent. Even if it is, statutory and case law in the applicable jurisdiction may cause the outcome to be different from any answer we might suggest here, which is why you should consult a lawyer in the jurisdiction in question.
At the very least, consider the above questions, as the lawyer you consult will likely have the same ones for you, and you can save yourself some time and money by being prepared for them.
I’ll try to answer them all with one sweeping answer (If it doesn’t hit the topics, let me know). The genesis of this (as far as I know) is that there is bad blood between the siblings who have given birth to the grandchildren. To remove any control or doubt as to who gets the money, it was stated that the money will go to the grandchildren. That’s all I know. It was done by a lawyer. All children were minors at the writing of the will, but one will be turning 18 in a few months, so that may change. That child, even if she is 30 when the grandparents die, is still considered one of the grandchildren and will get her fair share. I don’t know who the executer of the estate is, but I hope it’s the attorney. I also hope it was set up to move the money into a trust, but I don’t know.
The parents of the grandchildren are not happy about this. There are three children, and two of them are openly angry about the arrangement. I do not object to this plan, but one son and one daughter want the money for themselves. I suspect they will try to contest the will, but I don’t know how easy it is to contest a will, so I have no idea if they will fight for what they think is theirs. My hope is that the two spend all of their own money and/or kill each other by causing each other to have a heart attack. That way, the kids will still get their money, and these greedy bozos will be out of the picture.
the grandfather isn’t dead yet, and the 4th grandchild is on the way. Not sure which will happen first, the birth or the death. Let’s assume, for the sake of this, the child comes before the death.
I hope this helps.
One question I do have is, what if the will is read and the money is dispersed. How long after the death of someone does an heir have a chance to contest the will.
FTR, I am not one of the people that will benefit from this. My child is in line, which is fine by me.
Okay, I’ll make a few necessarily general remarks. As you know, statutory and case law in the jurisdiction in question may make my remarks wrong, so be aware of that.
It would seem to me that the problem is more with the parents of the grandchildren, then–in other words, they are going to be the ones who launch a claim against Grandfather’s estate, not the fourth grandchild. This is not as far-fetched as it seems; the applicable legislation (i.e. a Wills Act or similar) may assume that parents leave things to children (not grandchildren), and thus may allow a challenge by the testator’s children.
Yes, of course; if she is a named beneficiary, she will receive a share. My question was more along the lines of minor children benefiting–very generally speaking, minors do not benefit directly; their inheritance goes into a trust for them to receive when they are of the age of majority, or another age specified by the testator. Variances can occur–a trust may be released earlier than planned to pay for tuition (say, the child enters college at age 17), or the testator may specify that the minor beneficiary only receives the trust at the age of (say) 25–but beneficiaries who are minors generally have their gifts from the estate put into a trust.
Why is this important? Because who the trustees are is important. I don’t see a problem here if the trustee is a neutral third party, such as a lawyer, accountant, or banker who is being paid a fee for acting as trustee. But I do see a problem if the parents act as trustees. If they are as you say they are, then you may want to watch for any chicanery in the administration of the trust funds.
What would be best is for Grandfather to rewrite his will now, to reflect what Gary suggested: for his estate to be divided equally among all grandchildren, regardless of number. I’d also suggest he specify trusts where necessary, with neutral trustees. If he is intentionally leaving his children out of the will, he should say so, perhaps with a reasonable explanation as to why (for example, “I leave nothing to my son Robert, as I supported him through all of his failed business ventures and I consider that he has already received his inheritance”). Grandfather’s lawyer should be able to do all this without a problem.
That can depend on the jurisdiction, and would be stated in its statutory law.
At any rate, “will readings” such as you see on TV and in the movies, are not the norm. Generally, all beneficiaries, potential beneficiaries, left-out beneficiaries (such as Grandfather’s children in your scenario), and assorted other next-of-kin and relatives are notified somehow before anything is disbursed. When one of the above hears as to his or her beneficiary status, is the time to launch a challenge, not after things have been distributed.
Again, all my remarks are necessarily general, and may not be accurate according to the law of the jurisdiction in question. Be warned.
Spoons, thank you. I am warned, as you state. But I think you give me a good base from which to start. The next move I guess would be to contact a lawyer in the jurisdiction to get an idea of the specifics of this area.
I’m one of these people who is very fair during these things. Over the last decade, unfortunately, I have found that when money is involved, people turn into strangers, and risk life-long relationships to screw a sibling, aunt, whatever out of what the deceased has left. I want to stay out of the middle of this fray. Since I’m related to this nightmare by marriage, I can stay out. However, I don’t want to see any grandchild screwed. If there are 10, then everything gets divided by 10. Simple as that.
