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February 2008Newsletter

The Basics of Will and Trust Contests

Wealth Planning Update

When a parent dies, his or her Will or Trust often provides that assets are left equally to children. However, for various reasons, a parent may decide to benefit the children unequally or may even decide to disinherit a child. In some circumstances, this can leave a child wondering if the Will or Trust reflects the parent’s wishes. The child or children may wish to challenge the Will or Trust. On the other hand, a parent who is disinheriting a child may be concerned that his or her intent will not be honored after his or her death.

Challenging a Will or Trust

The terms of an individual’s Will or Trust must generally be honored. However, a Will or Trust will not be honored if the document does not reflect the individual’s true intent. There are two common ways to challenge a Will or Trust. The first is to claim the individual did not have the testamentary capacity to execute the Will or Trust. The second is to claim that a third party unduly influenced the individual. An individual who is challenging a testamentary document must provide clear and convincing proof that the document does not reflect the wishes of the deceased individual.

Testamentary Capacity. Testamentary capacity describes a person’s legal and mental ability to execute a Will or Trust. An individual must have a general, meaningful understanding of what he is doing with his estate, including who will receive it and who is being excluded. This does not mean that he must know the exact value of all of his estate nor the details of every asset.

Questions over testamentary capacity often revolve around dementia, insanity, or senility. These claims often occur when the testator does not remember a family member. This does not mean that an aging, forgetful, or eccentric individual cannot write a Will or Trust. If a person is incoherent at times, he may be incompetent to execute legal documents at one point, but then be competent to execute a Will or Trust during a lucid interval. In this situation, it is crucial to demonstrate that the individual knew what he was doing at the time the Will or Trust was signed.

  • Undue Influence. Undue influence is the legal term for coercion, manipulation, deception, compulsion or intimidation in the process of writing a Will or Trust. A Will or Trust may be invalidated if the document does not express the true intent of an individual because of the undue influence of a third party.
  • If called upon to determine whether a testator was unduly influenced, a court may look at four factors:
  • Susceptibility. The testator must be susceptible to undue influence. Age, personality, physical, and mental health all determine if the testator is open to excessive influence. If the testator is able to handle his own accounts and personal affairs, he is less likely to be influenced. On the other hand, if the testator is vulnerable to the suggestions of others and always looks to a third person for help on personal matters, he can be susceptible to influence.
  • Opportunity. The third party must have an opportunity to influence the testator. Opportunity can occur in a mere moment or it can arise because of a long-term relationship.
  • Disposition. This aspect looks at the character of the third party who is influencing the testator. A court will try to distinguish between encouragement by a friend or relative and manipulation and deceit by a third party. Undue influence requires that third person has a wrong or unfair intent to acquire more than his share of the estate.
  • Results. The third party must not only have the opportunity and disposition to make the susceptible testator give the third party an unfair share, but he also has to succeed. A slight benefit is usually not enough.

If a court finds proof of these factors, it may invalidate the Will or Trust. However, a court requires a strong showing of proof, and it is often difficult for an individual challenging a document to present enough evidence to overturn a Will or Trust. Nevertheless, an individual creating a Will or Trust can include safeguards to ensure that his estate planning documents are protected.

Protecting a Will or Trust

If an individual is creating a Will or Trust that disinherits an expected beneficiary, he can take certain steps to ensure that his intent will be honored.

  • Make sure the Will or Trust is clearly written so it will not need interpretation that may change the intent.
  • Include a no contest clause. A no contest clause is a provision in a Will or Trust that operates as a threat to cut a beneficiary off if he or she challenges the document. While these provisions may not offer absolute protection, no contest clauses may be proof of the individual’s intentions.
  • Communicate with family members. Most challenges come from disgruntled heirs who expected to receive more from a decedent. Challenges can be limited either by talking about the estate plan before the testator’s death or by leaving a letter with the drafter of the estate planning documents explaining the testator’s choices.
  • Make a good record when writing and signing the estate plan that can later be used to prove the testators capacity and intentions. The witnesses of the signing can be influential in a court battle. If capacity is expected to be an issue, the signing of the Will or Trust can be videotaped.

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