What happens when someone objects to a will?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

UPDATED: Jul 15, 2021

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The process of contesting a will can be drawn-out and expensive. Attorneys in the estate planning and probate fields might compare will contests to nasty divorces, because family members tend to become angry, stubborn and, sometimes, irrational.

Establishing Standing

Before a person can contest a will, they must have what’s known as standing, which means that they are directly affected by the probate proceedings and believe that their rights to the estate have been impacted. For example, if a son believes his mother was suffering from dementia when she signed a will that excluded him from her estate, he would have standing to contest that will. State laws govern who has standing to bring a will contest, so the laws may vary from state to state. 

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Reasons for Contesting a Will

The will is not properly signed –  All states have rules governing the proper execution of a will. Many states require that an individual sign his or her will in the presence of two witnesses. All three individuals must be in the same room at the time the will is signed. The witnesses must acknowledge that the individual is signing his or her will, and it is generally required that they are not in a position to benefit from the estate, i.e., they must be disinterested. If an an interested individual believes the signing did not take place within these guidelines, he or she can bring a contest.

The will creator lacked capacity – To sign a will, a person must have mental capacity to understand what assets they hold and who will receive those assets upon death. Often, as people age, they develop Alzheimer’s and/or dementia. These diseases come gradually and the person creating the will may have good days and bad days. Capacity to sign also becomes a problem when someone is suffering from a long-term illness; if they are taking pain medication, it may result in lack of sufficient consciousness to sign important documents. The key is to determine whether, at the exact moment the will is signed, the individual had capacity to understand what assets he or she has to give and who will receive those assets. Making this determination may require numerous depositions and reports from expert witnesses, which can be expensive. 

There was undue influenceUndue influence means a person has exerted so much control over another individual, that the individual no longer has free will to make decisions for themselves. In cases of undue influence, the person being taken advantage of tends to be elderly and/or vulnerable due to illness. Generally, a relative or caregiver develops a close relationship with the individual while isolating them from other friends and family. The relative or caregiver will accompany the individual to discuss estate planning with an attorney, coach them in what to say, or even directly advise the attorney regarding the creator’s wishes (often in their own favor). The attorney may not be able to tell that the creator is being pressured or manipulated; however, most competent estate planning attorneys will ask the relative or caregiver to leave the room. After meeting privately, if the attorney is comfortable that the creator is not under undue pressure, they may proceed with preparing the will documents.  

In terrorem clauses – Many people ask whether they can include a clause that would penalize a beneficiary for contesting a will (known as an in terrorem clause). These provisions generally provide that if a beneficiary contests a will, he or she will lose any inheritance otherwise allocated to them. Most states have laws prohibiting these types of clauses. If a beneficiary cannot object to a will without fear of losing their inheritance, the beneficiary is far less likely to object even in a case of undue influence, or lacked capacity to sign. 

Take Action – Prevent Complications

There are attorneys who specialize in this particular area of will and trust litigation. If you are thinking about bringing a will contest, or are concerned that a relative may bring a will contest after your death, consult with an attorney to see what measures can be taken to prevent complications.

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