Will Contests and Inheritance Litigation
Unfair provisions of a will, beneficiary designation, or other estate planning instrument do not have to be the last word as to the distribution of the assets of a deceased person. Under the right circumstances, legal challenges exist for negating such provisions. Experienced counsel should be consulted to determine whether any such remedy exists in your case.
An estate plan may not reflect the considered intent and free will of the person making the will (the “testator”). Instead, it may reflect the confusion or mistake of the testator who, at an advanced age did not understand the formalities of the document, did not comprehend the amount of his assets, or did not understand the nature of his relationships. More troubling is that the estate plan may reflect the deceitful influence of a third party, intent on obtaining more than he would otherwise be entitled. The resulting estate plan may unjustly enrich a dishonest beneficiary at the expense of deserving heirs.
Fortunately, there are legal options for remedying such defects. Estate planning instruments can be challenged or reformed to more consistently reflect the testator’s true intention and free will. However, the rules for such challenges are complex and may require the assistance of experienced counsel. Our attorneys have extensive experience with these issues. Please contact us for a consultation.
Grounds for Challenging a Will, Trust, Beneficiary Designation or Gift:
Unhappiness with the provisions of an estate plan is not enough. To undo or reform an estate planning instrument, you need to demonstrate that it reflects one or more of the following flaws:
Lack of Proper Formalities. Formality is paramount in estate planning. A will may be invalid because it was not properly drafted, signed, or witnessed. To be validly executed in Wisconsin, a will generally must be signed by the testator of the will in the presence of two witnesses who also signed the will in the presence of each other and the testator. A forged will or a will reflecting the direct tampering of a third party lacks such formalities. Later additions or changes to a will by the testator without proper signature and witnessing, moreover, may not be enforceable.
Lack of Clarity or Contradiction. To be enforceable, estate planning provisions must be objectively clear and consistent. A bequest for “Mary” with no further identification as to which Mary or a bequest of a specific car to more than one beneficiary may result in confused beneficiaries but not necessarily an enforceable bequest.
Lack of Capacity. A minimum level of mental capacity is required for the execution of a valid will. The testator must have a general understanding of the nature of his assets (approximate amount and value) and the identity of his beneficiaries (who they are and their relationship to the testator). A millionaire who believes he is penniless or a mother who cannot name her children may lack capacity to execute a will. Lack of capacity may be established through a prior diagnosis of dementia, Alzheimer’s, mental illness, or evidence of irrational conduct of the testator around the time the will was executed. Harboring an irrational belief despite objective evidence to the contrary can also indicate lack of capacity.
Undue Influence. Undue influence describes pressure improperly imposed by a third party on the testator of a will through fraud, force, or coercion, with the objective of obtaining a larger share of the testator’s estate. Those applying such pressure may be a relative or friend of the testator, trusted advisor, health care worker, or anyone else who holds a position of power or influence over the testator. Undue influencers often upset a long established estate plan through which the estate was to be distributed equally among the testator’s natural heirs. The influence exerted must be “undue,” such as coercive or false. Evidence of influence which is positive or based on truth will not negate a will. Examples of undue influence include a sibling coercing a parent, through lies and other fraudulent means, to disinherit another sibling; a new friend or acquaintance isolating an elderly person from her family in the last months of her life in order to secure a share the estate; or a caregiver implicitly or explicitly threatening to withhold care unless an estate plan is changed in his favor. To the extent the testator’s estate plan reflects such improper pressures the estate plan can be negated.
Tortuous Interference with Inheritance. Tortuous interference with inheritance describes a legal challenge based on undue influence or fraud when the estate planning instrument is other than a will. For example, a tortuous interference with inheritance claim may be brought when no will was written or a will was revoked as a result of undue influence or coercion; it can also be used to challenge improper beneficiary designations.
While the common term for these challenges is a “will contest,” they are not limited to wills. These challenges may also be brought to negate aspects of other estate planning documents, such as trusts, marital property agreements, beneficiary designations, pay on death accounts, or even to challenge the absence of a will.
Frequently Asked Questions: What is a will contest?
A “will contest” describes a challenge to the legality of a will or other estate planning instrument on the grounds that the document lacked the required formality, the testator lacked the required capacity, or the document resulted from the fraud, undue influence or duress of a third party.
While the common term for these challenges is a “will contest,” they are not limited to wills. These challenges may also be brought to negate aspects of other estate planning documents, such as trusts, marital property agreements, beneficiary designations, pay on death accounts, or even to challenge the absence of a will.
What factors should be considered in determining whether a challenge may be appropriate?
- Whether a successful challenge will materially increase the amount of assets you or your family will receive
- Whether the document was executed with the proper formalities, e.g., signature of the testator and witnesses
- Whether there is evidence that the change to the estate plan resulted from undue or improper influence or an altered state of mind due to medication, illness, or other factors
- Whether the change was made shortly before the testator’s death
- Whether the current beneficiary is a natural and expected recipient of assets, such as a disposition in equal shares to children
- Whether the latest document is consistent with previous versions
- Prior diagnosis of dementia, Alzheimer’s, or mental illness
- Severe memory issues
- Reliance on strong medication
- Erratic and irrational behavior
- Irrational beliefs in spite of contrary objective evidence
- Execution of multiple versions of the will
- Execution of the will shortly before death
What sort of things evidence that undue influence was imposed on the testator?
Evidence of undue influence on the testator may include:
- Recent friendship with the influencer
- Large age difference between testator and influencer
- Large sums withdrawn from accounts
- Missing personal belongings, e.g., art, silverware, jewelry, or electronics
- Overpayments to influencer for goods and services
- Influencer expresses unusual interest in amount of assets of testator
- Testator’s isolation from other family and friends
- Influencer reluctance to allow testator to speak with others outside his or her presence
- False and damaging statements made by influencer about other family and friends
- Influencer’s ability to control medication of testator
- Influencer’s ability to control testator’s contact with others
- Evidence of physical abuse of testator
- Evidence of financial abuse of testator
- Evidence of testator’s depression
- Evidence of testator’s susceptibility to influence
- Checks written on testator’s behalf by influencer
- Opportunity to influence the testator
- Unexplained changes to will or other estate planning document
- Changes made shortly before death
- Influencer arranged for change to the will by obtaining attorney or transporting testator to appointment
- Unequal change to the estate plan in favor of influencer
When can a will contest be made?
Normally, a will contest can be made only after the death of the testator. Prior to his death, the testator can generally change his will at any time.
A will should be challenged shortly after the death of the testator. Once a will is found valid by a court and admitted to probate, it can be challenged only under very limited circumstances. Delay can be very detrimental to a successful challenge because of practical concerns dealing with the passage of time, particularly the availability of evidence and the collection of assets.
Who can bring a will contest?
Only persons with a financial interest in the estate can file a will contest. Generally, a will contest should be filed only by a person who would receive a materially larger share of the estate if the will is negated.
What if the will includes a provision that anyone challenging is to receive nothing?
These provisions are referred to as “no contest clauses,” and they provide that anyone challenging the will shall be eliminated as a beneficiary. No contest clauses are generally disfavored by the courts. In Wisconsin, a court cannot enforce a no contest clause if there is “probable cause” for a challenge. “Probable cause” is generally an easy standard to meet.
What happens if a will contest is successful?
It depends on the nature of the challenge. If the challenge is based on a defect in the execution of the document, the testator’s lack of capacity, undue influence, or fraud, the entire document is normally negated and the assets pass according to the rules of intestacy as if there was never a will. If the challenge is based on ambiguity or inconsistency in the document, the document may survive with modification to the challenged provision.
How are attorneys paid in such cases?
Fee arrangements are made on a case-by-case basis and can be on an hourly, contingency, or blended fee basis. An hourly fee is determined by multiplying an attorney’s hourly rate by the number of hours the attorney worked on the case. Hourly rates differ among attorneys based on levels of qualification and experience. Contingency fees are usually paid as a percentage of the gross amount recovered for the client. Blended fees are a combination of a reduced hourly fee and a contingency fee. In most cases, the client is required to provide a cost retainer, to pay for costs such as deposition transcripts, service of process, investigative fees, etc.
Wisconsin law provides that certain attorney’s fees and costs can be paid from a probate estate, if expended in a successful will contest or otherwise to the benefit of the estate.