Say someone dies and leaves an incredibly simple, cut-and-dry will. Let’s also say that you think that the will was clearly outdated due to circumstances going on in the person’s life when they died, but no newer will exists.
What’s the precedent for successfully challenging that will in court? Is this something that’s done, or is it as simple as “whatever’s in the will is what’s going to happen?”
For example, let’s say when a person dies, it turns out that their will left everything to a previous spouse that they were on horrible terms with at the time of their death - are their survivors totally screwed, or do they have any sort of chance of taking it to court and getting the will overturned based on circumstance?
With respect to divorce in particular, most states nullify the provisions of a pre-divorce will that leave property to a now ex-spouse or nominate that person as a fiduciary of the estate. Otherwise, in general, you cannot contest a will on the grounds that it is out-of-date or that had, counterfactually, the decedent executed a more recent will or codicil, the testamentary distribution would have been different.
Just thought I’d bring up beneficiaries on accounts such as life insurance, IRAs and 401k’s. You fill out a beneficiary form that dictates where those assets will go, and the beneficiary form overrides anything you put in your will. My guess is that 90% of the readers here don’t even remember selecting a beneficiary.
It has happened (and been upheld in court according to my tax research sources) that ex-spouses receive insurance benefits or retirement accounts, even when the will said the assets should be distributed some other way.
I’ve seen it happen a few times with beneficiarys when I worked in H/R. Someone would get married and if I new I send out a note saying, “If you want to, please update your life insurance.” And rarely did it ever happen. I often wonder how the new wife will feel that the man leaves the insurance money to his mother or father or brother, just because he was too lazy to change it.
So I would think this happens a lot in wills. I read about one case where a man left money for his nephew to go to college. But he didn’t change it and when he died, the nephew already had a doctorate and didn’t need the money for school, but the court ruled it was an acceptable condition and if the nephew wanted the money, he had to use if for a college education or forfeit it.
When I did this, I listed as beneficiary “Estate of T. Bonham”. Then these would go in with all other assets of my estate, and be distributed as I directed in my will. I believe that is still allowed in most states.
Heh… we knew of such a situation. A woman had an IRA before her marriage. It listed her brother as a beneficiary. She then married, and had a child. The widower was trying to persuade the brother to refuse the bequest (there’s a specific term that’s slipping my mind right now) in favor of the young child. The brother was being a bit of a jerk about it.
I know many places have rules that if you set up an account, your spouse MUST be listed as the beneficiary unless the spouse signs papers agreeing to something else, but that apparently doesn’t affect accounts that predate the marriage.
Here, at any rate, failure (or refusal) to make ‘reasonable provision’ for your dependants, i.e. wife or minors who will be left destitute otherwise will result in the will being voided, at least in part.
In the US, the tax statute for tax-qualified pension plans (known as ERISA) requires that the spouse be the beneficiary, unless the spouse waives that right in writing. How that works when there is both a present surviving spouse and an ex-spouse I don’t know for sure, but I’m guessing (and it is only a guess) that the present surviving spouse is entitled to it even if the ex-spouse is the named beneficiary. Consult a good tax lawyer to be sure though.
In 2006 my grandfather died (my grandmother is still alive).
My grandfather left each of the grandkids $10,000. But in order to claim it I had to sign a waiver stating I would not go after his estate for any more money.
Trust me, not in a million years would I have been so greedy to challenge this - especially with my gramma still alive and needing to support herself for a long as she is around - as my grandparents are not millionaires.
But based on the responses here I wouldn’t have had a leg to stand on anyway…so why the waiver?? This is Canada BTW.