Why are you allowed to contest a will?

[Princhester]

@Triskadecamus

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.

Tris

It’s generally necessary to write more than one as you go through life. The folks you’ll want to leave your worldly possessions to changes markedly between when you’re 22 and single and when you’re 75 and have a wife, three children, and grandchildren.

Subject to that qualification however, IME your post couldn’t be more wrong. It’s a matter of perception bias. The percentage of wills that are contested is very small. It’s just that the thousands of estates that are handled with no acrimony and excitement whatsoever pass completely below the average person’s radar.

[Napier]

>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.

But when you write a will, you aren’t doing anything with your money. You are leaviing directions for the state, for what the state is to do with your money. Even if there were no such thing as wills, you are always free to give your money to your children.

There may be a practice of building wealth for the greater family, but once the person who owned the money is no longer a person, it might be legitimate for the state, as representative of the people, to make various choices about what greater family the money should benefit and how.

[pravnik]

@doubled

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”.

As has been said, most states do have such a process in place, in which wills are witnessed and notarized and can be self-proved by affidavit. For the vast majority of cases, these processes cause probate to go smoothly, and most wills aren’t contested.

Even with these procedures in place, however, there still needs to be an outlet to prevent mistake and/or fraud. A will may be 100% valid on its face, but completely invalid when evidence beyond the “four corners of the document” is introduced. What if the signatures and notarizatrions on the will or affidavit were forged or fraudulently obtained? What if there was a second will which appeared to revoke the first in whole or in part? What if the testator lacked the mental capacity to understand the nature of his or her actions? What if a caretaker exerted undue influence over the testator by, say, witholding medication until the will was changed to make them the sole beneficiary? Procedures to contest wills exist to provide a remedy for situations like these.

[Caffeine.addict]

Additionally, the number of contested wills cases is very small and at least in Virginia, they are very hard to prove. Proving that someone was incapacitated after they are dead is not an easy thing to do. Of course, if the will is contested and held to be invalid, then the court will turn to a previous will or if there wasn’t one, they will simply treat the estate as an intestate estate.

I would guesstimate that less than 1% of wills ever get challenged, and most of those cases are unsuccessful.

First Disclaimer- I am speaking very very generally and only based in my somewhat limited experience. This is an area governed by state law and your mileage can and will differ tremendously between states. If the situation comes up in real life, go see a lawyer and do it quickly as there may be statute of limitations issues that arise.

[Polycarp]

To illustrate why a will might be contested, let me tell you about my grandfather’s will, which was not contested – rather, it was ignored, by the common consent of all heirs.

We all lived in a two-family house – the sort of older frame structure in which two dwelling units are built side-by-side within the same structural framework. My grandfather and grandmother originally bought this back around World War I, as tenants by the entireties. Soon after my parents married, they sold half of it to them, again as tenants by the entireties. But both my grandfather and his lawyer were more than slightly senile, and simply drew a line down the middle of the house. Some years later, my father attempted to take out a mortgage on “his half” and discovered that what had been done was contrary to the city zoning laws. Back to another lawyer to rescind the illegal deed and rewrite it as my grandparents having sold an undivided half interest in the full structure to my parents, the intent being that each couple should occupy one of the two dwelling units.

So my grandfather dies, leaving my grandmother, my aunt, my father, and myself (age 10) as potential heirs. Under tenancy by the entireties, his half interest ought to pass to my grandmother, right? Well, remember his senile lawyer?

Grandpa wrote a will which assumed he’d outlive grandma (she was 3 years older than he), effectively disinherited her (because they assumed her to be already dead), left the half house (line-down-the-middle version) which he’d already illegally sold to my father to him as his share, and left his cash estate and the other half to my aunt (who had been caring for my grandparents for decades). No mention of grandma, no mention of undivided half interests, just the oddball result described.

My parents and my aunt sat down (grandma was effectively incoherent by then) and agreed they were just not going to ever mention that will as having existed, and treat his estate as intestate, with the understanding that any liquid assets left would go to Aunt June instead of being divided between Dad and her. They called me downstairs and told me what they’d decided, and why, since I was the only possible other heir. When grandma died, they worked up some sort of covenant where title to the house was distributed 50% Dad and Mom (what they’d bought back when), 25% Dad as grandma’s heir, 25% Aunt June as grandma’s other heir, Aunt June to have life tenancy of her half pf the house.

In a sense, it was the heirs conspiring to thwart a will. I prefer to look at it as bringing order out of chaos, and the results everyone, living or dead, had actually intended.

[Mijin]

IANA lawyer, but I seem to remember reading something about an obligation to give a certain share of your possessions to any living dependents you may have.

While this makes intuitive sense (e.g. if your kids have no living relative/friend who can look after them, the State would be pretty pissed off that you left your $20 million fortune to the sexy girl at the video shop), I can’t find a cite so I may be talking crap (again).

[Cerowyn]

@Paddy O'Furniture

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”.

I would suspect that the majority of people die when their offspring are no longer dependents, thus making inheritance a relatively rare thing. What happens to family run businesses in this situation? If the founder of the company dies, it has to be sold to someone who can afford to buy it? How long would small businesses last in the US in that scenario?

[Princhester]

@Mijin

IANA lawyer, but I seem to remember reading something about an obligation to give a certain share of your possessions to any living dependents you may have.

While this makes intuitive sense (e.g. if your kids have no living relative/friend who can look after them, the State would be pretty pissed off that you left your $20 million fortune to the sexy girl at the video shop), I can’t find a cite so I may be talking crap (again).

It varies from jurisdiction to jurisdiction. In Australia and the UK dependants can make a claim on the estate regardless of the will, and a court will effectively re-write the will to ensure the dependants are provided for in this situation.

[Moirai]

My own will is minimal- it is a “pour-over” will, which basically states that all my assets are in my trust and shall be dealt with there, and that anything not officially in the trust at the time of my death shall be “poured over” into it immediately. The trust also deals with issues such as dependent care, trusteeship, executorship, etc.

So, my will basically says- “Don’t touch! Deal with my trust!”

[Guinastasia]

@Cerowyn

I would suspect that the majority of people die when their offspring are no longer dependents, thus making inheritance a relatively rare thing. What happens to family run businesses in this situation? If the founder of the company dies, it has to be sold to someone who can afford to buy it? How long would small businesses last in the US in that scenario?

Growing up the daughter of a funeral director, that’s extremely common for many funeral homes. There’s one around here that’s been passed down from generation to generation since 1868.*

*[sub]No, my family doesn’t own one-Dad just runs one owned buy a separate company. And in case you’re wondering, if he did, I could inherit it, without being a mortician myself.[/sub]