101-year-old woman battling for home over handwritten deed

I read the attached article from www.sbsun.com about 101-year-old Lois Risse, and all I could think was "what a mess". How sad that this woman has to undergo the stress of this legal battle and the surrounding circumstances, when it could easily have been prevented.

It appears that since Mrs. Risse's husband died 30 years ago, the people around her may well have been taking advantage of her. She has made mistakes herself as well. Click here to read the story. Shortly after her husband's death, she sold her home to a friend using a handwritten deed. There was a verbal agreement that the deed would not be recorded until Mrs. Risse passed away, and an assurance by the buyer, Mr. Neff, that Mrs. Risse could live in the home for as long as she wanted.

The story became more complicated, including a friend who moved in and kept Mrs. Risse isolated from her neighbours, persuaded Mrs. Risse to buy him a motorcycle and didn't leave until the sheriff's office forced him out. Then of course, there was the adding of Mr. Neff's name to Mrs. Risse's bank account shortly after her husband died. Eventually the court appointed a conservator for Mrs. Risse to protect her from the people in her life, and the conservator, not knowing about the sale deed, applied for a reverse mortgage for Mrs. Risse. At that point, Mr. Neff recorded the deed.

Now everyone is in court to sort out various legal issues. On my reading of the article, each step forward seems just to lead to more questions.

As I mentioned above, most of this heartache and financial loss could have been avoided. The following are some of the errors that led to this situation:

1.  Creation of a hand-written document with no legal advice. The house was Mrs. Risse's largest and most important asset, and now she has lost it. An asset of this importance is worth the cost of seeing a lawyer for an hour to make sure it's protected.
2.  Verbally agreeing to terms that vary a written agreement without documenting them in any way. Now it's one person's word against another, and one of those people is 101 years old.
3.  Not keeping a record of money supposedly paid under the agreement. Apparently neither Mrs. Risse nor Mr. Neff can produce receipts for payment, though he insists it has all been paid. Now Mrs. Risse's bank records are being examined by strangers to try to piece together what happened, and neighbours are pitted against each other with accusations of taking advantage of Mrs. Risse.
4.  Adding Mr. Neff's name to the bank account. I can't imagine what purpose that would serve for Mrs. Risse. Now it's almost impossible to figure out where money went and to verify Mrs. Risse's claims that her money was disappearing.

Unfortunately, many of the mistakes made here are made pretty often. People seem to think that insisting on legalities or formalities between friends or neighbours is insulting. This story is an example of what can happen even when you trust someone.

Handwriting analysis of the signature on a will

Have you ever wondered about how a real life court would deal with handwriting experts? I say "real life" to distinguish actual courts from our dramatic and exciting - but fictional - counterparts on TV. Handwriting is an issue from time to time when there is a question about whether the signature on a will is really that of the deceased, and when that happens, handwriting experts are usually called in.

Justin de Vries, who blogs at www.allaboutestates.ca, has provided an excellent overview of recent law in this area. Click here to read his article.

The bottom line is that forensic handwriting analysis is acceptable to judges, but doesn't necessarily make or break the case. The courts seem to want to be able to make their own judgments about the validity of the handwriting. Mr. de Vries' article is interesting reading, so check it out.

Murder and the joint account

We've all heard the saying that "crime doesn't pay". The law sets up punishments for criminal behaviour that are above and beyond any jail terms or fines the criminal justice system might impose. For example, if you kill someone, the law says that you can't collect on the person's life insurance policy that names you as a beneficiary.

But what about a situation in which one joint bank account owner kills the other? Would the surviving joint bank account owner be entitled to the whole account? Half of the account? None of the account? This situation is fortunately extremely rare so I was interested to see how the courts would deal with it.

Click here to read an article from lawyer Chris Staples in which he looks at the recent New Brunswick case of Doyle v. Doyle. In this case, the widow of the deceased was charged with murdering her husband but at the time the joint account case was heard, she had not yet been either convicted or exonerated. In this case, the court decided that she was entitled to one-half of the joint bank account because she owned half of it already while her husband was alive.

Widow owes rejected adopted daughter millions, court says

Here's an interesting story with a happy ending. A wealthy couple from New York adopted a child. The father made a will sharing his $250million estate between his biological and adopted children. A few years after the father died, his widow basically gave the child back, and in fact the child was adopted by someone else.

Eventually it came to light that had the child not been "returned" by the widow, the child would have inherited millions of dollars from her first adoptive father. The new parents sued on behalf of the child and eventually the court ruled that the father intended this adopted child to share in the estate. He couldn't have foreseen that after he died, his wife would try to un-adopt the child.

To read about this story in more detail, click here to see an article from yahoo.com.

This is a really interesting precedent from a legal point of view. Usually the law is pretty clear that when someone is adopted, they are for all legal purposes the child of the adopting parents and are no longer connected to the original parents. If that rule were strictly followed here, it would mean that the child, being adopted by a second couple, would no longer have any entitlement to the estate of her first adoptive parents.

However, I completely agree with the court's findings in these very unusual circumstances. Circumstances changed after the father's death in a way that he could not have foreseen. Dickens himself couldn't have come up with a more heart-wrenching plot.

Can an executor get away with ignoring the instructions in the will?

Here is another letter from a reader who, as you readers tend to do, hit the nail right on the head with a question that will interest many of you.

"What can be some ramifications of an executor who disregards instructions that have been written in the will? I assume they cannot just get away with doing whatever they want can they?"

Executors get away with a heck of a lot, partly because they don't really know what they're doing and partly because the beneficiaries don't know either. This only gets worse when the executor either deoesn't hire an experienced estate lawyer, or hires one and ignores his advice. A large number of executors are under the impression that the estate they are looking after has been given to them to do with as they see fit, including re-writing the parts of the will they don't especially like, and of course this leads to trouble.

I'm glad to see you asking questions about this because beneficiaries and families in general need to know more about the estate process. There is no government agency that oversees what executors are doing. It's up to the beneficiaries of an estate to keep the executor on the straight and narrow, but that's not easy to do when you don't really know what the rules are.

Yes, there can be ramifications for an executor who disregards the specifics of the will. The severity of the consequences will depend on the facts of the breach. For example, an executor might ignore the will's instructions to sell everything, and give the beneficiary an item without selling it first. That would be considered less serious than an executor who decides to keep all of the money in the estate for himself without giving anything to the beneficiaries.

If an executor has simply made a mistake and realizes it, the objective should be to fix it to the extent possible without any need to punish anyone. However, court involvement is usually required to bring about any consequences for an executor because few will admit they've done something wrong, and even fewer will volunteer to correct their mistakes. The severity of the penalty is decided by a judge. Some of the things that judges will do fairly often are:
- remove the executor from the job of being executor
- reduce the executor's fee or withhold it altogether
- force the executor to produce a decent accounting
- set deadlines for the executor to meet
- force an executor to pay back money out of his own pocket

If the executor refuses to do as the judge says, the judge might ramp up the consequences. This could mean holding the executor in contempt of court, which could mean a fine or jail time.

If an executor has stolen from an estate, he can be arrested just like anyone else. Depending on the facts, this could lead to fines or jail time or other punishments decided by the courts.

Lately I've posted a few times about new cases involving executors who have been held accountable for not following a will. The courts seem to be cracking down on them, and for the sake of the families and beneficiaries who are at the mercy of the executors, I'm happy to see it.

I'm over 21 and competent - can my money still be held in trust just because the will said so?

This reader wrote to me to ask about his inheritance that is being held in trust. It's not that unusual for people to want to receive their inheritances outright, rather than having them held in trust. However, collapsing a trust through the courts is not necessarily easy.

Here's the question:

"When my grandfather died about 7 years ago, he left me a large sum amd specified in the will that it must go into a trust that my mother controls. However I would gain control of it once she dies. I was over the age of 21 at the time the will was created, and I am not mentally incompetent. Is it legal for my mother to still maintain control of my money just because it said that in the will? If I hired a lawyer to try to gain control of my own money, what is the likelihood of winning?"

Is it legal for your mother to follow a legally valid will? Of course it is.

Generally speaking, we can't just pick the parts of the will we like (such as getting money) and ignore the parts we don't like (such as having the money held in trust).

You mentioned a couple of common reasons that money is held in trust. One is that a beneficiary might be a minor, though the age of 21 that you mentioned seems random. Another is that a beneficiary might be mentally incompetent. However, these are not the only reasons that trusts are set up. Perhaps your grandfather was worried that you might blow the money. Maybe he worried that your marriage was shaky and he didn't want you to lose your inheritance to a divorce. Perhaps you have creditors or a gambling problem or an addiction.

Keep in mind that your grandfather is not obligated to explain to you why he wanted to set up a trust, nor does he need your approval. He gave you a gift and this is the gift he chose to give, for his own reasons.

One part of your question makes me wonder if you really understand this trust, or even if there is a trust for you at all. It's possible that the will leaves a share of the estate to your mother, and you would only have inherited if she had passed away before your grandfather did. This is how the majority of wills are set up. You talk about control of the money, which is what trustees do, not what beneficiaries do. It's odd that your grandfather would give you "control of" a trust for yourself.

It's also odd that a trust that's all about you would be focused on the death of another individual (your mother) unless you're a contingent beneficiary. By that I mean that it's possible that your grandfather did set up a trust for you by leaving your mother a life interest in some assets, with you to receive anything that's left at the time she passes away, as opposed to you "controlling" assets left at her death. I'd need a little more information to be confident that I understand your situation.

Assuming that you are correct and there is a trust for you, before making any decisions about trying to collapse the trust in court, check the wording in the will carefully. There will be clauses that impact the administration of the trust, and perhaps some that specifically address closing the trust early. For example, some trusts are written so that if the sum becomes quite small, the trust can be wound up.

You don't say whether the trust gives you a fixed monthly amount, or whether your mother has the discretion to pay money out to you on an "as-needed" basis. The amount of discretion given to the trustee is important, as sometimes the trust is written so that the trustee can decide to pay out the capital of the trust in full if she feels like it.

There might be other relevant information, such as the trust being established to pay for your education. If you've already completed your education, you might argue that there is no reason to hold it in trust any longer.

There is quite a lot of legal detail and argument involved in determining the point at which a beneficiary's interest in a trust vests in the beneficiary. The exact wording of the trust will matter. Whether there are any beneficiaries after you will be relevant too.

If you do hire a lawyer, why not start by having the lawyer read the will and interpret for you exactly what you inherited, and the terms on which it was inherited? Often the only lawyer involved in an estate acts for the executor, not the beneficiary, so you may never have received legal advice on your situation. You might just find, as I mentioned, that the will already contains wording that will help you without having to resort to long, difficult, expensive litigation.

How do I know if someone is contesting the will?

I recently received this note from a reader who is acting as the executor of an estate:

"I have applied for probate and now I'm waiting the 6 months to see if anyone is going to contest the will. If they do contest it, how will I know?"

This is an excellent question, particularly if there is someone in the family who has been making noises about contesting the will. Usually the six months that you refer to is in place to allow a dependent of the deceased to apply for a greater share of the estate. Strictly speaking, this isn't contesting the will, but is only asking the court to change the distribution to give more of the estate to a person who was not sufficiently supported. In most places, a dependent (a spouse, minor child or handicapped adult child) has six months from the day the probate is issued by the court, NOT six months from the date of death.

If someone is going to make this kind of claim, they have to follow the court procedure set out in the law of the province or territory. Every province has its own laws and forms. The person who is making the claim would have to file certain documentation with the court and then serve the documents on you. They don't start a new lawsuit; they file all the documents in the probate court  using the case number assigned to your probate application.

Serving the documents - or giving you a copy of them - is usually done by registered mail or in person. When you filed your probate documents, you would have been asked to give an address for service. If you applied without a lawyer, the address for service would be your home address. If you used a lawyer, the address might be the lawyer's office. And by the way, refusing to pick up your registered mail doesn't mean they haven't served you. They have.

If someone tells you on the phone or writes you a letter saying they are making a claim against the estate, that is not sufficient. They have to go through the proper court process just like you did when you applied for the probate. Just talking about it does nothing. If someone does tell you they want to make a claim against the estate, tell them to see a lawyer.

Say what you mean in your will, because a court might not figure it out for you

One of the biggest drawbacks of home-made wills is that people are not very good at making their intentions clear to others. Even when wills are made by lawyers, from time to time there is a clause that is unclear. When this happens, the executor will have no choice but to resort to the courts for help in figuring out what the heck to do with the estate.

A new case from Nova Scotia has clarified what the court is and is not prepared to do in these situations. The case, from December 2012, is In Re Das, and revolves around a will made for Mr. Das by his lawyer. The will was somewhat complicated, and problems arose with an account from RBC Dominion Securities worth about $1Million.

There were two problems with this account, and the different ways the court dealt with them are good examples of what a court will fix and what it will not fix.

The first problem was that there was a typo in the account number of the investment in the will. The court looked at all the evidence and agreed that it was  just a typo. The court said it was pretty clear that Mr. Das meant to mention the correct account number, so the will could be relied upon as if the proper account number had been included.

The second problem was something much more troublesome. Mr. Das specifically excluded the account from the distribution of certain assets of his estate to his wife and daughter. But then he wasn't clear about what was to happen to the account. The way the will was worded, the account might have been intended for charities mentioned in the will, his wife or his daughter in some proportion.

The court said that based on the wording of the will, as well as outside evidence, it was impossible to tell what Mr. Das had intended to do with that account. The court said that it could only speculate, and that they did not believe that speculation was their role. In the end, they declared that the investment account was not covered by the will and therefore must be distributed according to the intestate laws of the province.

The case makes it clear that the responsibility lies on each of us to make sure that our intentions are properly expressed in our wills. The courts will help out when they can, but they've said they won't simply make things up where the evidence doesn't exist.

To read more about this case, click here to read a blog post by lawyer Chris Staples.

My personal advice to those of you who are making will is this. If possible, find a lawyer who specializes only in wills and estates. If no such lawyer is available in your area and there isn't a major centre nearby with that expertise available, try to find a lawyer who you know has done a good number of wills. Secondly, this is no time to cheap out. Sure, you might save a couple of hundred dollars, but the legal costs your estate pays later could be in the tens of thousands.

Executor who helped himself to estate must pay punitive damages

One of the issues I hear about frequently from readers of this blog is out-of-control executors and trustees who don't seem to know or care about the rules they are supposed to follow. Sometimes the beneficiaries choose not to take action against these executors and other times they take the executors to court.

I've just read a case review that I'm going to share with you. It's a new case from Ontario where a man named his brother as executor of his estate, to look after the estate for the deceased's sons aged 12 and 16. The estate was not large, but the uncle squandered it and spent it. He didn't give the boys the personal belongings the father left behind. The boys ended up getting nothing of their father's. Instead of having their education paid for as their father intended, they had to take on debt to get through school. They sued their uncle.

This case is interesting because it goes beyond the usual remedies that are available against executors and trustees. Usually when an executor is behaving badly, he or she can be removed from the job, made to give up any executor fee, and made to pay legal costs. If things are really bad, the executor may end up paying for damages or losses out of his or her own pocket.

But in this case, the judge awarded punitive damages against the uncle. As the name implies, punitive damages are assessed against someone to punish them, much like a fine. They are relatively rare in estate litigation. In fact, the judge was so annoyed at the uncle's behaviour that he awarded double what the sons asked for (which was also more than double the full amount of the estate)! Click here to read the case of Walling v Walling.

I am so pleased with this case (and thanks to www.allaboutestates.ca for bringing it to my attention). I'm glad that the courts are taking a hard line with executors who cause not only financial problems for the very people they are supposed to protect, but heartache and frustration as well.

Executors and trustees, listen up. Do the job you were named to do, or you too could end up on the hook for thousands of dollars.

Can my deceased brother's common law wife claim more than the will gives her?

Here is another interesting note from a reader with a question that many of you will confront as executors or as beneficiaries. This one has to do with a common law spouse claiming a larger share of an estate. Here's the question:

"My brother passed away 2yrs ago. He left everything to two people, me and his common law. His money is split 50/50 between us both. I am received a letter that she is claiming dependant. She feels that because she has a disability that she should receive more. Can this happen and what is there for me to do?"

Yes it can happen, but only within certain guidelines.

In all provinces and territories in Canada, there are laws that allow certain people to claim a larger share of an estate if they believe the will (or intestacy provision) doesn't adequately provide for their needs. In all areas, these certain people include spouses, minor children and adult children who are handicapped. These are generally referred to as "dependent relief" laws.

I see that the spouse mentioned here is a common law spouse. Not all parts of Canada include common law spouses in the definition of "spouse" for inheritance purposes. So this spouse could legally be entitled to all kinds of things including child support, tax relief, pensions etc but still not be allowed to claim a larger portion of the estate. So that is the first thing you have to check on - whether your province allows common law spouses to have succession rights.

In the "interesting links" section of my blog, look for the link called "common law partner succession rights" and click on it. It goes to a table that basically says yes or no to the question of whether common laws are allowed to make this kind of claim.

The second thing that leaped out at me is the fact that your brother died two years ago. In every province and territory where claims of this type are allowed, there is a deadline by which the claimant has to file the lawsuit. It's usually 6 months. Note that this means 6 months from the time probate was granted, not 6 months from the date of death. It would be pretty odd for this will not to be sent to probate for two years after your brother's death. So that is the second thing to look into.

Assuming that your brother's common law spouse does fit the legal criteria of a dependent, and has made a claim within the allowed time, I would think that she would have a decent shot at success. I say this because you  mentioned she is handicapped, though it's never a guaranteed outcome. It's up to her to prove that the 50% she is supposed to receive is not enough. The court will also look at whether she received anything outside of the will, such as joint property, a life insurance policy or a pension.

You, as the other beneficiary of the will, would have notice of the court application and have a chance to read and examine her documentation before the court date. If you want to oppose her application, you can do so.

This isn't something you'd likely want to do without consulting a lawyer. Start by finding out the facts so you know where you stand.

Make sure Mom knows when you visit

The recent BC case of Moore v. Drummond had a surprising result that may cause some uncertainty for lawyers and executors. The case revolves around the death of 98-year-old Dorothy Drummond. She disinherited her only son, Bruce, for not visiting or calling her for 50 years. However, there was evidence that he had visited her, and phone records showed that he called her at least once or twice every month. There were other issues with Mrs. Drummond's capacity as well, and Bruce challenged the will based on lack of capacity. However, the will was upheld by the court.

Click here to read a very good article about this case by lawyer Charles Ticker in www.advocatedaily.com.

Near the conclusion of the article, Mr. Ticker says that "this case emphasizes what I always tell my clients: you never know what a trial judge is going to do and there is no such thing as a sure winner." I couldn't agree more. Normally we give our best predictions based on precedent - what other judges have said in similiar circumstances where the law is the same. This case throws in a bit of a wrinkle.

Weak claim against the estate could cost you big time

"Gone are the days when the costs of all parties are so routinely ordered payable out of the estate that people perceive there is nothing to be lost in pursuing estate litigation". So said Ontario's Court of Appeal in the case of Smith Estate v. Rotstein earlier this year.

In that case, a woman challenged her mother's will on the basis that the deceased lacked testamentary capacity (i.e. didn't know what she was signing) and was unduly influenced into making the will. The woman's brother was the executor and was forced to defend the will. By the time the case made it through two levels of court, his legal bills were over $700,000.

The judge said that there was so little evidence supporting the woman's claim that she should never have brought the case in the first place. And if she had brought the case in good faith, she should have dropped it early on once she saw all of the evidence. However, the woman stubbornly carried on with the lawsuit, apparently thinking that the costs wouldn't matter because the estate would pay them.

She had a nasty surprise. The judge made her responsible for the brother's costs of $700,000, as well as $30,000 in disbursements. Ouch!

This should be a major heads-up to anyone who is thinking about bringing a weak lawsuit against an estate for emotional reasons. Yes, it's tempting to make the executor stop and pay attention to your issues. Yes, it's tempting to vent your emotions this way. And yes, you may even have heard that when estates end up in court, the estate pays all the lawyers. But this case makes it clear that pointless litigation just for spite won't be tolerated. The free ride for will contests is over. Unless there is strong evidence to back up your claim, don't count on the estate paying your lawyer.

Baronet's son claims father duped him out of his inheritance

I'm attaching a story from www.telegraph.co.uk in which a baronet's son claims he was duped out of his inheritance by his own father, when his father sold the castle that had been in the family for almost 400 years. The court did not support his claim.

I've often said that the things that happen to the rich and famous are the same issues that happen with the rest of us. Maybe for us it's a modest bungalow in the city rather than a castle, but the concept of the child thinking he's entitled to whatever the parent has seems to be found everywhere.

Click here to read the story. The reporting/writing is pretty shaky, but the story behind it is great. The attached photos of the baronet's son and the castle in question are from the story linked above, and are credited to Nevile Ayling/Alamy.

Sherman Hemsley estate battle rages on

I know that many people think that estate lawsuits only happen when there is plenty of money at stake. That just isn't the case. If you think you're likely safe from your kids (or previously unknown relatives who come out of the woodwork) suing each other and your estate because you don't have much to fight over, you could be wrong. I'm attaching a link to a story about Sherman Hemsley, best known to TV-watchers as George Jefferson, whose estate is worth only $50,000. His body is still in deep freeze months after his death while his survivors battle it out. Click here to read the article by Charles Ticker in www.advocatedaily.com.

Get along with your co-executor or it will cost you

Attention co-executors who are squabbling and fighting with each other. You know who you are.  You are probably siblings. Somebody made the ill-fated decision to ask you two to get along in the best interests of their estate, and it has fallen apart. One of you makes decisions about the estate without the other. One takes the other to court repeatedly on the slightest excuse, asking the court to remove the other, with accusations of lies and duplicity. One executor is bullying the other.

Well, you'd better figure out how to act like adults and get along.

In a new case from Alberta, the court slapped the bullying co-executor with big court costs. The court made it clear that co-executors have an obligation to try to resolve their differences amicably without resorting to the courts if at all possible. The estate suffers when co-executors behave badly and make the estate administration all about their personal issues. The court's message is to get along, or it will cost you. To read more about this case in a story from lawyer Chris Staples, click here.

Botswana women now allowed to inherit

While our laws of inheritance may not be especially clear to those who don't have much contact with them, they protect a lot of rights that we take for granted. Imagine how hard it would be on women, for example, if they were not allowed to inherit the family home. That was the law in Botswana until a few days ago, when their high court contradicted years of tradition and held that women do have the right to inherit. To read the complete news story from BBC, click here.

This is great progress for women, and for the families they have to raise alone if their husbands have passed away. To me, this is what inheritance law should do - protect people who are vulnerable in the absence of their loved ones.

The attached photo is from AFP, from www.bbc.co.uk.

Death by forgery: case shows how not to conduct advance care planning

This is one of those completely odd news stories that just make me shake my head. According to a story from the American Academy of Estate Planning Attorneys, a Missouri woman is being accused of 1^st degree murder and forgery. The murder weapon: her father’s power of attorney, allegedly forged, naming herself as the agent. The actual murder: directing that her father’s life-sustaining medical treatment be discontinued. The accused, Susan Elizabeth (“Liz”) Van Note has pleaded not guilty to the charges. I'm very glad that my own law practice has had very few of this kind of client!

To read the rest of this story, and yes it gets weirder, click here.

All this will be yours one day: Are testamentary promises enforceable?

The Ontario courts have recently dealt with a case that I believe will be of interest to many readers.

The case concerned a father who kept promising his sons that one day the farm and substantial monetary assets would be given to the sons. However, despite the sons doing all that he asked and making choices and sacrifices specifically to hold up their end of the deal, in the end the father left the sons very little. He gave his assets to his new wife.

The question for the court was whether the bargain between the father and the sons would hold up legally. In this case, it did hold up, at least in part. The sons received the farm. To read more about this decision and the reasons given by the court, click here to see a blog post at www.allaboutestates.ca.

I find the case interesting simply because so many people tell me that someone - a parent, relative or family friend - promised them something from an estate but the promise wasn't upheld. Back in the days when I did estate litigation, I heard this frequently. People weren't happy when I told them I didn't think suing the estate would work out for them.

This case clearly sets out what needs to happen in order for a promise like this to stand up legally. If your elderly uncle casually mentions one day as you sip a beer in the backyard that he is thinking about leaving the house to you, and that's the last you hear of it, then don't count on receiving it. In order for your claim against the estate to be successful, you would have to show that you believed you'd own the house, and that you relied on this promise to your own detriment with your uncle's full knowledge.

As the author of the www.allaboutestates.ca blog post said, people are allowed to lie about the contents of their wills.

"I'm contesting the will" - real threat or just bluster?

I hear a lot of talk from beneficiaries about contesting of wills. The idea is tossed out as a threat by individuals who are unhappily surprised by not getting what they had hoped for under a deceased's will. But is it a realistic threat? The impression I get is that many people believe that anyone who doesn't like a will can simply demand that the will be changed to suit them.

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.


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Gay NYC judge challenges will ordering him to marry woman

The attached story from NBCNews.com talks about the will of a wealthy man who set up trusts for his grandchildren. The man, Frank Mandelbaum, had included a clause in his will that said the trust would exclude any children who were adopted by his son Robert while Robert was single, and exclude any biological child Robert might have if Robert didn't marry the child's mother within six months.

The will causes a problem for Robert, who is gay. He is married to a man, and he and his partner have a two-year-old son. Robert says that his father was accepting of Robert being gay and in fact socialized with Robert and his partner. Robert believes that the trust in the will should include his son, though the letter of the will would appear to exclude the son. (You'll note that the will doesn't in fact order him to marry anyone, despite the sensational headline NBCNews attached to the story).

Robert is challenging the will. The issue will be whether the father's instructions are to be taken strictly literally, or whether they are to be interpreted as intending to exclude children who are not born within a stable relationship. Both are interesting arguments, and you can read more about them and get more facts about the case by clicking on the link below to read the story. It's a truly interesting case.

Gay NYC judge challenges will ordering him to marry woman