Will contest
Encyclopedia
A will contest, in the law
of property
, 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). 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 only in part.
In many states, a legal presumption of undue influence arises where a beneficiary under the will stands in a confidential relationship with the testator. For example, where a testator leaves property to the attorney who drew up the will. However, this is dependent on the circumstances of such a relationship and the burden is initially on the person contesting to show undue influence.
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. However, since this 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.
to contest the validity of a will is limited to two classes of persons:
The following example is instructive:
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 these facts, Chandler can contest the will as the product of fraud
in the inducement, because if the will is invalid, he will inherit Monica's property, as the surviving spouse. Ross can contest the will as the product of Chandler’s undue influence
, because Ross will inherit Monica's property if Chandler’s behavior disqualifies Chandler from inheriting (note, however, that many jurisdictions do not consider a threat of divorce to be undue influence). Rachel has standing to contest the will, because she is named in the document – but she will not be permitted to submit any evidence as to the mistake because it is not an ambiguous term. Instead, she will have to sue Monica's lawyer for legal malpractice to recover the difference. Finally, Joey is neither someone who stands to inherit from Monica, nor named in the will, and therefore is barred from contesting the will altogether.
Some jurisdictions permit an election
against the will by a widowed spouse
or orphaned children
. This is not a contest against the will itself (the validity of the will is irrelevant), but an alternate procedure established by statute to contest the disposition of property.
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
of property
Property law
Property law is the area of law that governs the various forms of ownership in real property and in personal property, within the common law legal system. In the civil law system, there is a division between movable and immovable property...
, is a formal objection raised against the validity of a will
Will (law)
A will or testament is a legal declaration by which a person, the testator, names one or more persons to manage his/her estate and provides for the transfer of his/her property at death...
, based on the contention that the will does not reflect the actual intent of the testator
Testator
A testator is a person who has written and executed a last will and testament that is in effect at the time of his/her death. It is any "person who makes a will."-Related terms:...
(the party who made the will). Will contests generally focus on the assertion that the testator lacked testamentary capacity
Testamentary capacity
In the common law tradition, testamentary capacity is the legal term of art used to describe a person's legal and mental ability to make or alter a valid will. This concept has also been called sound mind and memory or disposing mind and memory....
, was operating under an insane delusion
Insane delusion
An insane delusion is the legal term of art in the common law tradition used to describe a false conception of reality that a testator of a will adheres to against all reason and evidence to the contrary. A will made by a testator suffering from an insane delusion that affects the provisions made...
, or was subject to undue influence
Undue influence
Undue influence is an equitable doctrine that involves one person taking advantage of a position of power over another person. It is where free will to bargain is not possible.-Undue influence in contract law:...
or fraud
Fraud
In criminal law, a fraud is an intentional deception made for personal gain or to damage another individual; the related adjective is fraudulent. The specific legal definition varies by legal jurisdiction. Fraud is a crime, and also a civil law violation...
. A will may be challenged in its entirety, or only in part.
In many states, a legal presumption of undue influence arises where a beneficiary under the will stands in a confidential relationship with the testator. For example, where a testator leaves property to the attorney who drew up the will. However, this is dependent on the circumstances of such a relationship and the burden is initially on the person contesting to show undue influence.
A will may include an in terrorem
In terrorem
In terrorem, Latin for "in [order to] frighten," is a legal term used to describe a warning, usually one given in hope of compelling someone to act without resorting to a lawsuit or criminal prosecution...
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. However, since this 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.
Standing to contest a will
Typically, standingStanding (law)
In law, standing or locus standi is the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case...
to contest the validity of a will is limited to two classes of persons:
- Those who are named on the face of the will (i.e. any beneficiary);
- Those who would inherit from the testator if the will was invalid
The following example is instructive:
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 these facts, Chandler can contest the will as the product of fraud
Fraud
In criminal law, a fraud is an intentional deception made for personal gain or to damage another individual; the related adjective is fraudulent. The specific legal definition varies by legal jurisdiction. Fraud is a crime, and also a civil law violation...
in the inducement, because if the will is invalid, he will inherit Monica's property, as the surviving spouse. Ross can contest the will as the product of Chandler’s undue influence
Undue influence
Undue influence is an equitable doctrine that involves one person taking advantage of a position of power over another person. It is where free will to bargain is not possible.-Undue influence in contract law:...
, because Ross will inherit Monica's property if Chandler’s behavior disqualifies Chandler from inheriting (note, however, that many jurisdictions do not consider a threat of divorce to be undue influence). Rachel has standing to contest the will, because she is named in the document – but she will not be permitted to submit any evidence as to the mistake because it is not an ambiguous term. Instead, she will have to sue Monica's lawyer for legal malpractice to recover the difference. Finally, Joey is neither someone who stands to inherit from Monica, nor named in the will, and therefore is barred from contesting the will altogether.
Grounds for contesting a will
The most common grounds, or reasons, for contesting a Will are:- Lack of disposing mind and memory or Testamentary capacityTestamentary capacityIn the common law tradition, testamentary capacity is the legal term of art used to describe a person's legal and mental ability to make or alter a valid will. This concept has also been called sound mind and memory or disposing mind and memory....
- Insane delusionInsane delusionAn insane delusion is the legal term of art in the common law tradition used to describe a false conception of reality that a testator of a will adheres to against all reason and evidence to the contrary. A will made by a testator suffering from an insane delusion that affects the provisions made...
- DuressDuressIn jurisprudence, duress or coercion refers to a situation whereby a person performs an act as a result of violence, threat or other pressure against the person. Black's Law Dictionary defines duress as "any unlawful threat or coercion used... to induce another to act [or not act] in a manner...
- FraudFraudIn criminal law, a fraud is an intentional deception made for personal gain or to damage another individual; the related adjective is fraudulent. The specific legal definition varies by legal jurisdiction. Fraud is a crime, and also a civil law violation...
- Undue influenceUndue influenceUndue influence is an equitable doctrine that involves one person taking advantage of a position of power over another person. It is where free will to bargain is not possible.-Undue influence in contract law:...
. Undue influence typically involves a trusted friend, relative or caregiver who actively procures a new will. For example, Florida law gives a list of the types of active procurement that will be considered in invalidating a will: (a) presence of the beneficiary at the execution of the will; (b) presence of the beneficiary on those occasions when the testator expressed a desire to make a will; (c) recommendation by the beneficiary of an attorney to draw the will; (d) knowledge of the contents of the will by the beneficiary prior to execution; (e) giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will; (f) securing of witnesses to the will by the beneficiary; and (g) safekeeping of the will by the beneficiary subsequent to execution. In most 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.
Some jurisdictions permit an election
Elective share
An elective share is a term used in American law relating to inheritance, which describes a proportion of an estate which the surviving spouse of the deceased may claim in place of what they were left in the decedent's will...
against the will by a widowed spouse
Widow
A widow is a woman whose spouse has died, while a widower is a man whose spouse has died. The state of having lost one's spouse to death is termed widowhood or occasionally viduity. The adjective form is widowed...
or orphaned children
Orphan
An orphan is a child permanently bereaved of or abandoned by his or her parents. In common usage, only a child who has lost both parents is called an orphan...
. This is not a contest against the will itself (the validity of the will is irrelevant), but an alternate procedure established by statute to contest the disposition of property.
Practicability of contests
Courts will not necessarily look to "fairness" during will contests. 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 they seem unfair. The decedent has a legal right to dispose of his or her property in any way that is legal. Due to a large number of will contests, judges are often wary of contests especially when involving the willing of property to charitable organizations .Consequences
Depending on the grounds, the result may be- Invalidity of the entire Last Will and Testament, resulting in an intestacyIntestacyIntestacy is the condition of the estate of a person who dies owning property greater than the sum of their enforceable debts and funeral expenses without having made a valid will or other binding declaration; alternatively where such a will or declaration has been made, but only applies to part of...
. - Invalidity of a clause or gift, requiring the court to decide which charity receives the charitable bequestBequestA bequest is the act of giving property by will. Strictly, "bequest" is used of personal property, and "devise" of real property. In legal terminology, "bequeath" is a verb form meaning "to make a bequest."...
, using the equitable doctrine of cy pres. - Diminution of certain gifts, and increase of other gifts to the widowed spouse or orphaned children, who would now get their elective shareElective shareAn elective share is a term used in American law relating to inheritance, which describes a proportion of an estate which the surviving spouse of the deceased may claim in place of what they were left in the decedent's will...
.