Why is it legal to contest a person’s will? Assuming I create a will that is properly signed and notarized, assuming my lawyer takes precautions to show the will is 100% legitimate, and assuming there is no proof I was mentally ill when I created the will, then how is any court entitled to overturn my will?
Example: when Anna Nicole Smith’s rich husband died leaving everything to her, his remaining family sued, and eventually won a piece of the estate. But how is that legally possible? If my will clearly says I want everything to go to person X, then why isn’t it an open-and-shut case that everything should go to person X? How does the rest of the family have any legal right whatsoever to challenge that request?
You could challenge those facts in court, but most of them are clear-cut. Either the will is properly notarized and filed or its not. A judge should be able to determine that in 5 minutes. So if you’re suing on that idea, which is clearly groundless, isn’t the judge entitled to throw the case out?
So it’s impossible to fake a notary stamp, or misrepresent yourself as a lawyer, or take advantage of someone who is not in their right mind? A will is presented to the court, and people with vested interests can challenge the validity of the document or the intent of the person who died. Nothing can be taken for granted.
From my days debating religious questions, I’ve learned that whenever someone says, “It’s clear-cut and obvious that…”, the only thing clear-cut and obvious is that the next words out of his mouth/keyboard are going to be debatable.
The purpose of probate is to prove what you think ought to be clear-cut.
Just like if you rush into a room where a man lies dying on the floor with a bullet hole through his heart and another man stands over him holding a smoking gun, it’s necessary to take the second man to trial to prove he was the killer, not just the guy who picked up the suicide’s gun after he shot himself.
The late Joe Gotbucks died at the age of 86, leaving his money to his buxom 27-year-old bride. It’s entirely possible that she truly cared about him as a person while his children were just waiting for him to kick the bucket so they could inherit, and being clear-minded and not senile, he realized this and left his money to the young woman who truly loved him. But hey, let’s subject that to proof, under courtroom standards, not the assumptions you make after reading the assumptions of a newspaper reporter.
Given your assumptions, it won’t be overturned. In the case of Smith, they family is arguing that the will was not proper. They felt that her husband was enfeebled due to age and didn’t have the mental capacity to legally make binding decisions.
Suppose that I get into a huge fight with my mother. I had been in her will for years. In a fit of pique, she writes a new will that night and excludes me from the estate. Two hours later she dies of a massive heart attack. If it can be shown that she had a history of being quick to anger and then forgiving after a night’s sleep, should I still be excluded?
What if I can show that my uncle was coerced through blackmail to change his will to give everything to my cousin who had embarrassing information about him?
I write Wills as part of my job and there are we have to take a lot of precautions:-
Through conversation, we have to judge the client’s mental awareness and ability to make a Will. We have to keep detailed notes on their mental state, which are kept with the will. If there is any doubt whatsoever, the client must be referred to a doctor, who will decide whether the client is capable of making a Will.
No-one apart from the client’s spouse or partner is allowed to be present while the client gives their instructions; this way, the client is free to give any instructions they like and no relative knows what the instructions are. It is impossible for any relatives to know what is in the Will unless the client tells them directly.
All Wills must be witnessed by two independent witnesses (not relatives of the client). If the will is contested, the witnesses will be called upon to swear an affidavit that the client was of sound mind and, to the best of their knowledge, not under duress.
If the client is leaving out, for example, one of their children from the Will, we strongly advise that they hand-write a letter, which is sealed with the Will, to explain directly to that child the reasons why they were left out of the Will.
I think I see where the OP is coming from: you just outlined what’s done at your firm to make a will “solid”. Why isn’t this taken one step further, that is to say, make the will pre-vouched for, so that its execution is mere formality when the person dies. All the hoopla that occurs when a will is contested, have that done up front, (while the person is alive) so that there is no need to entertain any arguments later .
In New Jersey, there is such a thing as a “self-proving” will, so that it is not necessary to re-contact the witnesses to vouch for it. IANAL, and I don’t know exactly what part of the process makes the will self-proving. My parents’ wills, mine and my husband’s were/are self-proving.
When my dad passed away, predeceased by my mom, my sister and I, co-executors, had merely to present the will to the surrogate office in the county where Dad resided at his death, and we got death certificates to use to settle all his affairs. Of course, this will was never going to be contested anyway, as Sis and I were the only children, co-executors, and the only heirs. Also, the estate was worth very little and not something anyone would have contested anyway.
I’d like to recommend Ralph Nader’s dad’s position, mentioned in his recent book:
Nobody should be allowed to give anything except to charity. With perhaps a deduction of some size for immediate dependents, the ones listed as such on their tax returns. An estate tax to put an end to class structure and “old money”.
>Why isn’t this taken one step further, that is to say, make the will pre-vouched for, so that its execution is mere formality when the person dies.
You mean, put all wills through a determination by a court? So that the wills that would have been challenged instead get their challenge with the predeceased sitting there to answer the questions?
How would you preserve the confidentiality of the predeceased’s decisions, if everybody who appears in the will, or thinks they ought to, get the opportunity to challenge what it says?
Wouldn’t this create a great deal of extra work, because now no wills are handled in a straightforward way? The few wills I’ve known anything about didn’t seem to generate any need for investigation or new decisionmaking.
How do you know when to go through this process? How do you handle it when things change, for example if you go through this process and then Grandma sells the house and moves to a retirement home? Do you partially review things, or start over?
No, not at all. But why can’t the courts establish a process of “if you follow such-and-such steps and get the signatures of such-and-such people and file the paperwork with such-and-such recognized authorities, then the resulting will is 100% valid. Your deadbeat brother in law will no longer be allowed to challenge it”.
If everything is valid, then the deadbeat brother won’t achieve anything by challenging it, just spend his own money. The estate will need to spend some money to defend, but that’s the price of life (death) in this world.
You can always assert that the steps and signatures aren’t valid, and then you’re back to step one.
Just want to insert my experience that until you have been a part of it, you may have difficulty appreciating how “goofy” (not the legal term of art) people can be when forming and contesting wills. Further, don’t assume that every will is drafted optimally.
Many people create their own difficulties by owning property in - um - unconventional ways. “Mixed” families can create estate complications. Also, it can be difficult to completely disinherit certain classes of relatives. In such situations, drafting shortcomings may make challenges more likely.
Perhaps the surest way to minimize challenges after your death is to distribute it beforehand thru trusts.
As messed up as my immediate family may be in countless respects, I remain proud of the way we dealt with the estate distribution after my parents’ death.
Thus not only creating a semi-fascist law that tells people what they may not do with their own money, but undercuts the practice from all of human history of building businesses and wealth for the good of the greater family.
If most folks wrote one will in their lives, and had it signed in front of witnesses, and let everyone know who was in it, and who was not, contesting wills would be a fairly rare thing. But, here on Earth, that doesn’t happen all that often.