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A will contest, in the law of property law, is a formal objection raised against the validity of a will, based on the contention that the will does not reflect the actual intent of the testator (the party who made the will) or that the will is otherwise invalid. Will contests generally focus on the assertion that the testator lacked testamentary capacity, was operating under an insane delusion, or was subject to undue influence or fraud. A will may be challenged in its entirety or in part.
Courts and legislation generally feel a strong obligation to uphold the final wishes of a testator, and, without compelling evidence to the contrary, "the law presumes that a will is valid and accurately reflects the wishes of the person who wrote it".
A will may include an in terrorem clause, with language along the lines of "any person who contests this will shall forfeit his legacy", which operates to disinherit any person who challenges the validity of the will. Such no-contest clauses are permitted under the Uniform Probate Code, which most American states follow at least in part. However, since the clause is within the will itself, a successful challenge to the will renders the clause meaningless. Many states consider such clauses void as a matter of public policy or valid only if a will is contested without probable cause.Uniform Probate Code (UPC) § 2-517. Penalty Clause for Contest, replicated at § 3‑905. Penalty Clause for Contest. Both found at University of Pennsylvania Law School website page on Uniform Probate Code. Accessed October 5, 2009.
This article mainly discusses American law and cases. Will contests are more common in the United States than in other countries. This prevalence of will contests in the U.S. is partly because the law gives people a large degree of freedom in disposing of their property and also because "a number of incentives for suing exist in American law outside of the merits of the litigation itself".Ronald J. Scalise Jr., Undue Influence and the Law of Wills: A Comparative Analysis, 19 Duke Journal of Comparative & International Law 41, 99 (2008). Most other legal traditions enforce some type of forced heirship, requiring that a testator leave at least some assets to their family, particularly the spouse and children.
For example, Monica makes a will leaving $5,000 each to her husband, Chandler; her brother, Ross; her neighbor, Joey and her best friend, Rachel. Chandler tells Monica that he will divorce her if she does not disown Ross, which would humiliate her. Later, Ross tells Monica (untruthfully) that Chandler is having an affair with Phoebe, which Monica believes. Distraught, Monica rewrites her will, disowning both Chandler and Ross. The attorney who drafts the will accidentally writes the gift to Rachel as $500 instead of $5,000 and also accidentally leaves Joey out entirely.
Under such facts:
Other nations like Germany may have more stringent requirements for writing a will. Lack of mental capacity or incompetence is typically proven by medical records, irrational conduct of the decedent, and the testimony of those who observed the decedent at the time the will was executed. Simply because an individual has a form of mental illness or disease, undergoes mental health treatment after repeated suicide attempts, or exhibits eccentric behavior, does not mean the person automatically lacks the requisite mental capacity to make a will.
Mere affection, kindness or attachment of one person for another may not of itself constitute undue influence." For example, Florida law gives a list of the types of active procurement that will be considered in invalidating a will: presence of the beneficiary at the execution of the will; presence of the beneficiary on those occasions when the testator expressed a desire to make a will; recommendation by the beneficiary of an attorney to draw the will; knowledge of the contents of the will by the beneficiary prior to execution; giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will; securing of witnesses to the will by the beneficiary; and safekeeping of the will by the beneficiary subsequent to execution.
In most U.S. states, including Florida, if the challenger of a will is able to establish that it was actively procured, the burden of proof shifts to the person seeking to uphold the will to establish that the will is not the product of undue influence. However, undue influence is notoriously difficult to prove, and establishing the someone has the means, motive and inclination to exert undue influence is not enough to prove that the person in fact exerted such influence in a particular case.Core v. Core's Administrators, 124 S.E. 453 (Va. 1924). However, attorneys are often held to a higher standard and are suspect if they assist in drafting a will that names them as a beneficiary.In re Putnam's Will, 257 N.Y. 140 (1931)
In many jurisdictions, a legal presumption of undue influence arises when there is a finding of a confidential (or fiduciary) relationship, the active procurement of the will by the beneficiary and a substantial benefit to that beneficiary, such as if a testator leaves property to the attorney who drew up the will. However, that is dependent on the circumstances of such a relationship and typically the burden is initially on the person contesting to show undue influence. Proving undue influence is difficult. In Australia, a challenger must show that the free will of the testator has been overborne by words and actions of the alleged wrong doer(s), to such an extent that the deceased's freedom of testation has been taken away.
In Florida, one of the most-often cited court rulings on insane delusion is from 2006. In this case, the decedent executed a new will in 2005 in the hospital with severe pain and under the influence of a strong medication. She died the next day. The new will disinherited the caretaker and left the decedent's estate to several charities. The caretaker asserted that the decedent was suffering from an insane delusion at the time the will was executed and that she thus lacked testamentary capacity. The decedent's physicians testified regarding the medication that the decedent was taking and how it had changed her personality. A psychiatrist who saw the decedent opined that she was delusional when she stated that the caretaker had abandoned her and had killed her dog. To the contrary, witnesses and evidence supported the position that the caretaker visited the decedent in the hospital every day, and the caretaker gave credible testimony that she was continuing to care for the dog. Accordingly, the court set aside the will as invalid based upon insane delusion.
For example, in Utah, a will must be "signed by the testator or in the testator's name by some other individual in the testator's conscious presence and by the testator's direction; and... signed by at least two individuals, each of whom signed within a reasonable time after he witnessed either the signing of the will... or received the testator's acknowledgment that."Utah Code Annotated, Title 75 Chapter 2 Section 502. In a Pennsylvania case, the wills of a husband and wife were invalidated because they accidentally signed each other's wills.
According to a 2009 Wall Street Journal article, "charges of forgery are more common than proven cases of it. They often originate with an adult child who, feeling short-changed in a parent's will, accuses a sibling of doctoring the document".
Notable cases of forged wills include the "Mormon will" allegedly written by reclusive business tycoon Howard Hughes (1905–1976), and the Howland will forgery trial (1868) in which sophisticated mathematical analysis showed that the signature on a will was most likely forged. British physician Harold Shipman killed numerous elderly patients and was caught after forging one patient's will to benefit himself.
In the United Kingdom, wills are often contested on the basis that a child of the deceased (or somebody treated as such) was bequeathed nothing or less than could reasonably be expected.
The vast majority of will contests are not successful,Miller, Robert K. (ed). Inheritance and Wealth in America, Springer Science & Business Media, 1998, p 188. in part because most states tend to assume that a properly-executed will is valid, and a testator possesses the requisite mental capacity to execute a will unless the contesting party can demonstrate the contrary position by clear and convincing evidence. Generally, proponents of a will must establish its validity by a preponderance of evidence, but those contesting a will must prevail by showing clear and convincing evidence, the latter requiring a much higher standard of proof.
Contesting a will can be expensive. According to a Boston-area estate planning attorney quoted in Consumer Reports (March, 2012), "A typical will contest will cost $10,000 to $50,000, and that's a conservative estimate".Consumer Reports Money Adviser, " How to contest a will: Do you think you were cheated out of an inheritance? You might be able to challenge the will". March 2012, accessed 2015-02-25. Costs can increase even more if a will contest actually goes to trial, and the overall value of an estate can determine if a will contest is worth the expense. In some cases, the threat of a will contest is intended to both pressure the estate into avoiding the expense of a trial and forcing an out-of-court settlement more favorable to disgruntled heirs. However, those who make frivolous or groundless objections to a will may be forced to pay the costs for both sides in the court battle.
Courts do not necessarily look to fairness during will contests, and a considerable portion of will contests are initiated by those who have no cause of action justifying a court case but are instead reacting to "hurt feelings" of disinheritance.Williams, Geoff (2013). " Disinheriting Someone Is Not Easy", Reuters 31 Jan 2013, accessed 2015-03-07. In other words, just because the provisions of a will may seem "unfair" does not mean that the will is invalid. Therefore, wills cannot be challenged simply because a beneficiary believes the inheritance or lack thereof is unfair. In the United States, the decedent generally has a legal right to dispose of property in any way that is legal.
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