This is not how it works.
Contesting a will means applying to the appropriate court to have a will struck down as being invalid. You would have to prove your case with sufficient relevant evidence. No judge in the country is going to rubber-stamp your request just because that's what you want.
Though each case and each will is different, the general concepts behind contesting a will are the same everywhere. Each case falls within these general headings. They are:
- undue influence
- lack of mental capacity
- problems with the will document itself, such as improper witnessing, lack of signature, other formalities not observed.
You'll notice that I'm leaving aide the issues that lawyers usually refer to as "dependent relief". This refers to an application by a spouse or child to get a larger share of an estate under a valid will. The will itself would still stand, but the court is asked to give a larger portion of the estate to someone in the family.
In this post I'm talking about the ways in which someone hopes to bring the entire will crashing down.
Undue influence:
A person relying on the concept of undue influence aims to show that the will should be struck down because the deceased had been forced or persuaded to make a will that wasn't really what he or she wanted. The idea is that the person getting the estate under this will wouldn't receive it had the deceased been left alone to do what he or she really wanted to do, and therefore shouldn't be allowed to receive it now.
Lack of mental capacity:
Mental capacity is an essential component of a valid will. A person making a will must understand what he or she owns, must have an appreciation of his or her obligations and must understand the nature and effect of making a will. Therefore, a will can be attacked on the basis that the deceased didn't really know what he or she was doing due to illness, injury, medications or other causes of confusion.
One thing that should leap out at you when you read about undue influence or lack of mental capacity is just how hard it would be to prove that either of these factors actually existed when the will was made.
How do you prove that the son receiving the lion's share of his mother's estate manipulated her into leaving it all to him? He will say that he was the one who helped Mom the most during the latter part of her life and that she left the estate to him out of gratitude. Then the battle will begin in earnest.
You may be absolutely positive that he influenced her. You may even think that "everyone knows" he manipulated her. But we're talking about a court of law, not a family dinner table. How do you prove it?
I'm not saying that these cases never succeed, because they do. They rely on a judge's interpretation of doctor's reports, witness testimony, family history, common sense and the law. They are tough cases that take a long time, a lot of money and infinitely thick skin to tolerate, but when the evidence exists, they succeed.
But I also believe there is an awful lot of blustering and threatening going on, carried out by those who have no real idea of just how hard it really is to successfully contest a will. Most people who talk about contesting a will change their minds once they realize what's involved.
Please don't post a question on this thread. This thread now has more than 200 comments, which is the limit for this system. Once we go over that limit, I can't see or respond to your question, so please post it on any other thread that has less than 200 comments. Thanks!
By signing out a will from the lawyer who had drawn it up, make it null and void if no other will was prepared?
ReplyDeleteMy mother died a few months ago and we (my sister's and I) know this will exists but my mother's husband does not know we know. He lead his lawyer to believe my mother did not have one. My mother was in the early stages of dementia when he took her to the lawyer to sign it out. Her portion of the sale of the marital home was help by a trustee. Long story short - do we have any legal right to bring this into the light. Not contesting but validating an existing will...is there a legal term for this?
Thanks kindly,
Brenda
Hi Brenda,
ReplyDeleteI think by "signing it out" you mean that your Mom went to the lawyer's office and took her will from the lawyer and took it home. If that isn't what you mean, my answer isn't going to make any sense :)
No, signing it out like that does not in any way make it null and void. It has no effect on the validity of the will.
I think that as a family member and potential beneficiary under the will, you have not just a legal right but a moral obligation to bring the existing will to light. Your Mom's husband may mistakenly think the will is void, or he could intentionally be concealing it. Or, he could have taken it to a lawyer for probate and been told that there is some other problem with the will (seems unlikely if it was prepared by a competent lawyer). Either way, you need to have an answer to why the will isn't been sent to the court for probate.
Even if you don't know whether you'd receive anything under the will, you are what we would call a "logical beneficiary" because you are the daughter of the deceased.
The lawyer who signed out the will to your mother will have proof that the will existed and was picked up (after all, signing it out suggests that she signed something, which would be common practice in a law office).
So, consider how you'd go about this. You might end up hiring a lawyer if you can't get a direct answer from your Mom's husband.
Lynne
My mother passed away and left mt brother a few thousand dollars the rest to be divided among the rest of us.
ReplyDeletethere was no coercion, no mental issues and the will was signed.
My brother says he is going to contest the will based on the fact he should have received more.
Will this fly?
That will depend on the reason he should get more. If he has a handicap that prevents him from earning a living, he could be successful in getting a larger share.
DeleteYou said that your mother left him a small sum before dividing the rest among the children. Was that small sum in recognition of something in particular? Maybe a thank you for helping her later in life? On occasion a parent will make promises to one of the kids, usually a gift to thank them for helping. Every now and then a lawsuit based on that kind of promise is successful but they depend very much on the specific facts of the case.
Lynne
My Mother created a new will when she found out that her cancer had spread. She ended up leaving her partner (Mom and Dad were never legally divorced)the house and me, her only daughter, all of her assets. She was in a substantial amount of debt at the time of her death. At the time of creating her last will, I'm not sure she realized that her assets would have to be liquidated in order to pay off debts - she loved me dearly and everyone who knew her would concur. I am 100% certain she did not intend to leave everything to her partner, in whom she depended on for care and helping her with finances, and me nothing. Without getting into too much detail, are there grounds to challenge the validity of her will?
ReplyDeletemy father in law left the bulk of his estate to be divided equally between his secretary and our 3 yr old son in trust to us. we are planning on having more children and feel this is really unfair to our family. the sum of money is large and this means that if we have more children they receive nothing. all we want is for it to be changed so that it would be in trust to all our children if we have more and be split equally. is there any way we can have this changed? does the executor have the power to do this? we feel this is harmful to our son as it puts him in an unfair position when he is older and it is a burden. it also may influence our decision to have more children as they will never have what he has. Your thoughts or advice would be greatful
ReplyDeleteMy mom's will reads that she left money for her two grandaughters of her deceased son via two joint accounts set up between mom and her daughter. The daughter worked at that bank, stole the money and then closed the accounts. Not sure when the accounts were closed. What can be done?
ReplyDeleteWhat can be done?
My aunt had a will leaving everything to her nephew and 3 nieces. She always told us that we would be taken care of. She had no living children and was a widower. She remarried in 2003,then in 2004 changed her will to include her new husband but her family would still receive the bulk. In 2011 she started becoming ill. February 2012 she made a new will and told her nephew, whom she considered a son, that his inheritance didn't change but she had removed 2 of the nieces and added her new husbands children. She recently passed away. When the will was read, it showed that the entire estate now goes to her husband, his children and grandchildren. She was not close to them and still very close to her blood relatives. Can the nephew and nieces contest the will?
ReplyDeleteMy mother predeceased my grandmother, in my grandmother's will, it included all her children and grandchildren, but no mention of deceased children's children. I believe this was just an oversight of the lawyer, as my grandmother would never had wished my sister and I be excluded. My grandfather is still alive. I'm not thinking of contesting my grandmother's will, as most of the estate was left with him by the children's choice with exception of some equally distributed lump sums. However when he dies, he likely has the same will. Contestable? Or someway of dealing with this before he passes? My Aunts are aware we were excluded, and using the will as the excuse for my sister and I to not inherit anything.
ReplyDeleteGood Day
ReplyDeleteMy GrandMother passed away over a year ago. We had the estate law proceed with th will, about the same time probate was passed my aunt made a claim to contest the will. We receivced a notice to object, that was in Spetemeber 2012, and have hear nothing since. We have contacted the estate lawyer and seem to get a run around and told that she will send a lawyer to other lawyer or call them. My question is Isn't there a time limit my aunt has to do anything now. Hasn't any caveat or notice expired and our lawyer can finsh the process of disturbiting the will?
Hi Lynn , I have a few important quetions to ask . But I am not sure how to do it . If I am on the rigth track by sending you this ,would you send back a reply please ? Regards Jeanie
Deletemy father was bitter near the end of his life.. he changed the will be cause we would not leave our lives to tend to his every need. he divided his will to 23 persons from great grand children to his children equally. except for those who lived in his town he gave much more. he also left the lawyer in charge to invest any money for those under thirty. with the inclusion that if the lawyer looses all or some the lawyer would not be faulted.only the lawyer and investor were present to change his will family was not included..as a result property is at the discretion of the lawyer to sell to whom ever they wish? can this be contested if all children of his agree this is not correct?
ReplyDeleteThere is no reason in the world why your father would have included his kids in the process of changing his will, even if he was not bitter. He can change his will without anyone's permission or input.
DeleteIt sounds as if your father named the lawyer as the executor and trustee of the estate, and the trusts under the will. Like any executor, the lawyer has to make sure that he distributes the estate funds according to the will.
A beneficiary of an estate doesn't buy his inheritance, so I assume you mean selling estate assets and then putting the money in trust for the beneficiaries. Yes, he can do this, unless the will says otherwise. An executor has the ability - and the responsibility - to sell assets in the way that he believes benefits the estate the most.
What exactly is it that you want to contest? Is it the selling of property to someone outside the family? If someone wants to buy something, why go through an expensive lawsuit? Why not just make an offer on the property?
Lynne
My stepmother changed the will 2 months after my father died and left everything to her sister and my stepdaughter(who lived with her for 10 years) I could not get a copy of her and Dad's will from the courthouse because it was not probated but I know that my Brother and I were to inherit everything and I was executor of the will. I only found this out at the funeral home when we went to make arrangements. We were very good children to her and to say that we were shocked is an understatement. Do we have any recourse in this matter?
ReplyDeleteThere is nothing stopping anyone from changing their will after their spouse dies. However, she can only leave the assets to people if she has inherited them herself first.
DeleteIt's possible that your father's will left everything to her, and you and your brother were only supposed to inherit if she died before your father.
If you were the executor of the will, your father should have told you where the original will was kept so that you'd have access to it when it was needed. It couldn't be probated by anyone but you. How did you hear it at the funeral home, and was it from a reliable source?
I assume that you approached your stepmother and let her know that someone told you you're the executor. If you are, you have a legal responsibility to handle the estate. However, since you haven't done that and it appears that someone else has, like I said, your information may not be correct.
If you believe that you are the executor, hire a lawyer immediately and demand that your father's original will be handed over to you.
Assuming your stepmother did properly receive the assets from your father's estate, she can do whatever she wants with them, including leaving you and your brother out entirely.
Lynne
Hi Lynne,
ReplyDeleteIf beneficiaries dispute or contest a Will, who pays for the Court costs re the Executor.
Thanks
my mother passed away 1998 of cancer shortly before my father had a three strokes before my mother died she told me my father was not thinking straight and my sister has no conseints she told me there was 4 50, 000 bonds my sister now has shown me two slitly diferent will sthtleave her full control my mother cared equally for all her grand children his will leaves nothing to my self and children also my children wer no bourn when her will was wrote my self and children received nothing from my mother at all can I contest raysdream@hotmail.com
DeleteHi Lynne,
ReplyDeleteMy father passed away April 2011, and then my grandfather passed in September 2011. My grandfather had his will drafted to say that if one of his children pre-deceased him that a sum of money would be left to the children and spouse of that child. I just received notice that my father’s wife is contesting my grandfathers will, fighting for my father’s share of what he would have received if he were alive, asking for his share to go to his estate, and in turn she, of course, gets his entire estate. Bottom line she is angry that she got nothing and thinks she should get my father’s share. (land in a family farm that my dad and her farmed, but it belonged to my grandfather) What is the likelihood of this happening?
This is a tricky situation and there must be more to it than meets the eye. There may have been conversations held between her and your grandfather that you don't know about in which he made promises to her and your father. It sounds as if she was expecting to own a piece of land that she spent years farming. Depending on the facts, she could well have a case.
DeleteLynne
I am in need of help. My father passed away in 1996, he had a will made and he left me the house, in which I still live in to this day, but never had a chance to sign it because he passed away unexpectedly. My mother went to a lawyer and had them give her everything instead and she promised to give me back the house. But I am finding out now that she is getting older and not doing well, that she won't honor my father and is going to leave the house to me & my 2 sisters. My one sister agrees that the house should be mine because this was dad's wishes and since I have always lived here and have taking care of the property and dad when he was alive but my other sister wants me to buy her out? What can I do to get the house back to me, this is all I want. My mother refuses to talk about it.
ReplyDeleteThere are a couple of statements in your note that are incorrect, but I know they are the result of the frustration you're experiencing.
DeleteYour mother could not have gone to a lawyer and "had them give her everything instead". You said yourself that the will wasn't signed, so it was never legal. Your mother inherited, I believe, because there was no will and she was his legal wife. That isn't her doing; that's just the law and you can't blame her for that.
You also need to realize that once the house was transferred to your mother, it's not your father's house any more. She doesn't have to honour his wishes, or anybody else's wishes, because it's her house.
Your mother doesn't owe you the house. I know this isn't much help now, but you might have had a pretty good chance of contesting your father's estate on the basis that you looked after your father and the house based on his promise to you that you would have the house. It may not be too late, since the house is still in your mother's name and therefore still accessible, but that's something you would want to discuss with an experienced estate litigation lawyer in your area. This is a tough argument to win, but be frank and honest about what you expected, and why, and see what the lawyer says.
Why does your mother refuse to talk about it? Has she already given an answer and is sick of the conversation? Or is she just avoiding it? Understand that if you hire a lawyer to contest this, your mother and sisters will probably take it as an act of hostility and you may lose your relationships with them.
Lynne
Hi Lynne,
ReplyDeleteI recently found out that my mother, she is still alive (79), has left everything to my sister and her family in the will.
In the past my mother has asked me for advice about her will, so I saw no harm in looking at a new version that I saw on the table.
Briefly, in April 2012, my step-dad's brother informed me that my mothers drinking was killing my him (my step-dad), especially since he has Parkinson's, and I had to do something about it. Just that previous Dec. she totaled their SUV while driving impaired. I had my suspicions about my mother's drinking, but never confronted her directly since I didn't have evidence.
I waited until she made an undeniable mistake as a result of her drinking, and then confronted her in an e-mail some days later since no apology was forthcoming.
I contacted my sister the morning of the blunder asking her if she was aware of my mother's hiding booze bottles around the house. She never bothered to return my call that morning and I had been trying for a couple of months to talk to her about it but she never made the time. We have not spoken since.
I sent her a cc of the e-mail I sent to Mom begging her to stop drinking and waited 4 days to hear something back from her, nothing. I then informed her that I couldn't believe she was going to sit idly bye and watch our Mother drink herself to death after watching our father basically do that very thing.
I awaited a couple of months before trying further contact, sending an article on seniors health and drinking, I cc'ed a copy to my sister, again stating I couldn't believe she wasn't doing something. As it turns out, she stopped mom from looking at the e-mail, stating it was to up-setting.
I contacted a regional mental health group that specializes it working with seniors with additions and arranged a meeting if I could get mother to come. I asked my step-dad's other brother is he would help me with this, he said yes and then I never heard from him again.
Finally, my ace was to threaten to call her brothers in Germany and let them know what kind of trouble she is in. She promise to have stopped drinking, so we started contact again.
It was while doing some work at their home that I found the will, sitting on top of the table in the guest bedroom, it was dated a couple of weeks before I threaten to tell her brothers. I left without explanation.
She may never have stopped drinking but with her health issues and early dementia it is a recipe for disaster. I believe my sister was been an instigator to further drive us apart.
What do you suggest as a course of action to correct this?
Not being an addictions counsellor, I have nothing to say about how to deal with someone's drinking problem. Nor can I offer anything to do with your sister driving you apart. Although you didn't ask anything about the will, I assume that's what you're actually asking about, since this is a wills and estates blog. You asked how to "correct" this, but so far I don't see the mistake. Your mother is entitled to make a will leaving her estate to whoever she wants. She doesn't have to include you if she doesn't want to. The fact that your mother is an alcoholic doesn't prevent her from making a will.
DeleteAn issue that might exist here is that your sister may, according to you, be influencing your mother to make a will in her favour. This is pretty hard to prove, but a good place to start would be to compare the current will to old wills in terms of who was included. Perhaps you were never to be included. Perhaps your mother is upset with you for your efforts to prevent her from drinking.
As for your statement that you didn't see any harm in reading the new version of the will, what happened to privacy? And now you're looking for legal advice against your sister; I'd say some harm has been done.
Lynne
Hi lynn
ReplyDeleteI need your help please. do I have a case if I contest my father's will which named his three children and some of his grandchildren as beneficiary to his estate? my dad left his children equal share and also left shares to my two other siblings children but nothing for my children. due i believe his will was influence? YES can my share be court ordered for my children.
No. I don't think you have a case. People are not required to leave anything to their grandchildren, period. If they choose to include some and not others, they are entitled to do so.
DeleteLynne
A few years ago my mother died of heart attack and police came to investigate her death as they thought my father was involved somehow. He had written a book about How to commit suicide and it was found by her bedside table. After 4 hours of questioning they left him and ruled it a heartattack. He had her cremated right away without consulting his children and refused to have a funeral. I came across the will during this time and it turns out that my parents left everything to my one sibling. They left $1 to me (their son) and $500 to each of my kids but nothing else. They claim the reason for this is because they hate my wife so much and because I chose to remain with her I was disinherited. My father has recently passed away from brain cancer. Is there anyway I can contest this will as my one sibling will inherit everything from the sizable estate.
ReplyDeleteThis comment has been removed by a blog administrator.
ReplyDeleteThis comment has been removed by the author.
DeleteThis comment has been removed by a blog administrator.
ReplyDeleteThis comment has been removed by a blog administrator.
ReplyDelete