Will Contests

Never say you know a man till you have divided an inheritance with him. - Johann Kaspar Lavater

In spite of what you may think, or how things are portrayed by our popular culture, there are relatively few legal battles involving will provisions. This is good because will contests are long and financially draining battles that seldom achieve the results desired and create heartache and hostility that may never be resolved.

If you are a fan of mystery or crime novels (or simply a shrewd observer of life,) it won't come as a shock to you that the driving forces behind most will contests are greed and passion. Having a death in the family is a traumatic event in itself. Add to this the fact that a person's death often upsets the status quo among those left behind. Feelings formerly kept in check (like envy, resentment, and animosity to name a few) come out and are magnified during this emotional period. Factor in the potential for financial gain for somebody who is in a worse position and stands to gain more, and you've got the mixings of a classic will contest.

Having covered the motives, it is now time to consider the opportunities for contesting a will. Before beginning, though, it is important to stress that a valid will that is properly drafted, executed, and witnessed is not as likely to lead to a will contest. To have a chance at a successful lawsuit, there has to be a chink in the will's armor that creates an exploitable opening.

Will contests are usually based on one of the following three legal theories:

• The will is invalid due to some technical fault (e.g., the person was underage when they made the will or the person didn't sign it).
• The will is invalid because the person making the will was not of sound mind or body at the time the will was made.
• The will is invalid because it was made under circumstances involving fraud, duress, or undue influence.

The first is a rather straightforward legal theory and, perhaps because of its simplicity, is not seen as much. The other two legal theories are more infamous and used far more often, even though they are extremely hard to prove.

Tip When will contests do come up, a frequent scenario involves children contesting a will that leaves everything to a young spouse that married their much older parent shortly before the parent's death. Are older parents that remarry a much younger spouse crazy like a fox or just crazy? Although the motives of such marriages are justifiably questioned, they are not automatically coercive or products of a feeble mind (quite the opposite some would even argue). Without some tangible evidence of abuse or neglect, it is an uphill battle to disqualify the young spouse as a rightful heir. If you are concerned about being taken advantage of in a similar situation, you might consider a combination of revamping your will, setting up a trust for your children, naming your children or others as automatic beneficiaries of various assets you own, and having the future second spouse sign a prenuptial agreement.

Tip Battling siblings is another common scenario that leads to will contests. Generally, when all the assets pass from one spouse to another (and it's not May-December romance discussed above) the kids are all right with it. However, if there isn't a surviving spouse, often all bets are off. Years of sibling rivalry can boil over in an ugly battle. The best way to avoid this is to make sure that the terms of the estate are discussed in advance and with clear explanation of why there is disparate treatment between the siblings.

Should the validity of a will be successfully contested, there are two potential outcomes: the will passes muster and will take effect or it will be declared invalid. (It is also possible for only certain provisions of a will to be declared invalid--which is why a well-drafted will usually contains a severability clause and a savings clause.)

If the will is invalid, there are two options. The first is that the court will admit an earlier valid will in its place--this could prove to be an absolute nightmare. The second is that the assets in the estate pass according to default rules of a state's intestate succession laws. Intestate succession will often match exactly what the will purported to do, but can go badly awry in the case of remarriages and step-families.

No matter what the outcome, contesting a will is not inexpensive for any of the parties involved. An estate can actually be drained well before anyone gets a chance to claim any of its assets.

With all of the above in mind, you can see how special the circumstances have to be to warrant a will contest. To prevent this from happening with your will, rely on good will drafting principles to insure that there is no chink in your will's armor.