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Will Contests

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The party who contests a will.

Insane delusion:
Where one persistently believes supposed facts which have no real existence except in the person’s perverted imagination.

Direct evidence:
Evidence in the form of testimony from a witness who actually saw, heard or touched the subject of questioning.

Circumstantial evidence:
Testimony not based on actual personal knowledge or observation of the facts in controversy, but of other facts from which deductions are drawn, showing indirectly the facts sought to be proved.

“In terrorem” clause:
A clause in the will that provides that any person who contests the will shall forfeit all interests he otherwise would have received under the will.

In most jurisdictions, the party who contests a will is called a “contestant.” A person has standing to contest a will only if the person is an interested party (i.e., has a direct economic interest in the estate that would be adversely affected by the will’s admission to probate). See, e.g, Logan v. Thomason, 202 S.W.2d 212 (Tex. 1947). Most states further limit this category of people who can contest a will to the testator’s intestate heirs and his or her beneficiaries under an earlier will whose gifts are reduced or eliminated by the subsequent will. See, e.g., In re Power’s Estate, 106 N.W.2d 833 (Mich. 1961); Sheldone v. Marino, 501 N.E.2d 504 (Mass. 1986); Earles v. Earles, 428 S.W.2d 104 (Tex. 1968).

At the time the will is offered for probate, the will proponent has the burden of proving that the will was duly executed. See, e.g., Lee v. Lee, 424 S.W.2d 609 (Tex. 1968). Upon reviewing the instrument, some of the testator’s relatives may be unhappy with the testator’s bequests. If a challenge to the will’s execution is made after the will is initially admitted to probate, the burden of proof shifts to these contestants. See, e.g., Curtis v. Curtis, 481 F.2d 549 (D.C. Cir. 1973).

The remedy for dissatisfaction with the will is a will contest, where the contestants try to discredit the will on any number of grounds.

Testamentary capacity/intent

As previously discussed, a testator must be of sound mind at the time the will is executed. The mental capacity required to make a will is much lower than the legal standard for other acts, such as making a contract. See, e.g., In re Coddington’s Will, 112 N.Y.S.2d 4 (1952). As guidance, a four-prong test is often used. The testator must:

  1. Know the nature of the act (of making a will);
  2. Know the natural objects of his bounty (i.e., comprehend the relationship between himself and the proposed heirs);
  3. Know the nature, extent and value of his property;
  4. Understand the disposition.

Claude had been adjudicated incapacitated and a guardian had been appointed to manage his affairs. Claude executed both his will and a deed purporting to convey his personal residence on the same day. The deed was set aside, due to his incapacity. However, probate of Claude’s will was upheld because his condition passed the aforementioned four-prong test for capacity. See Lee v. Lee, 337 So.2d 713 (Miss. 1976).

Insane delusion is another theory advanced by disgruntled family members because although the testator may have had sufficient mental capacity to make a will, the insane delusion would interfere with his or her ability to formulate a rational plan of disposition.

An insane delusion occurs “where one persistently believes supposed facts which have no real existence except in his perverted imagination. . . .” See In re Harrgrove’s Will, 262 A.D. 202 (1941). In other words, it is a belief in facts that do not exist and that no rational person would believe existed.

EXAMPLE: Parker held the unwarranted belief that his frail 75-year-old wife, Millicent, had been cheating on him for many years by using knotted sheets to haul male callers to her bedroom on the second floor. Due to his delusion, the will was held to be the product of an insane delusion. See In re Honigman’s Will, 8 N.Y.2d 244 (1960).

Yet, having these beliefs is not enough. To set aside a will on the ground of insane delusion, it must be shown that the delusion had some effect on the testator’s disposition of his property. See, e.g., In re Heaton’s Will, 224 N.Y. 22 (1918). Successfully proving an insane delusion can lead to the entire will being invalidated or it may affect only a particular gift. See, e.g., In re Perkin’s Estate, 195 Cal. 699 (1925).

EXAMPLE: Parker executed his will leaving $1.00 to his wife, Millicent, and $10,000 each to his two sons, Guy and Keith. The balance of his estate was left to a charity. Parker prepared his will this way because he held the unwarranted belief that his frail 75-year-old wife had been cheating on him for many years by using knotted sheets to haul male callers to her bedroom on the second floor. Due to his delusion, the provision in the will related to his wife was held to be the product of an insane delusion. Instead, Millicent would likely be eligible to receive an elective share of the estate. The bequests to Guy and Keith would not be affected by the change in Millicent’s gift, unless the estate was insufficient to satisfy all three bequests.

There is a rebuttable presumption of capacity. As such, the burden of proving otherwise falls to those contesting the will to show the testator lacked the requisite mental capacity. See, e.g., Shevlin v. Jackson, 124 N.E.2d 895 (Ill. 1955); UPC § 3-407.

Testimony of the subscribing witnesses who were present during the will’s execution is persuasive in supporting the theory that the testator lacked testamentary capacity. See, e.g., Gilmer v. Brown, 44 S.E.2d 16 (Va. 1947). Their function is to testify to the actions and statements they observed. The witnesses are not qualified to render an opinion as to whether the testator had legal capacity or not to prepare the will. See, e.g., In re Estate of Vickery, 167 A.D.2d 828 (1990). Yet, they may testify as to the testator’s mental condition. The difference is that the former involves coming to a legal conclusion, which a lay person is not competent to do. Rather, the court is charged with that task.

Surprisingly, medical testimony holds less weight, due to the fallibility of medical science. See, e.g., In re Estate of Van Patten, 215 A.D.2d 947 (1995); Wright v. Wolters, 579 S.W.2d 14 (Tex. 1979).

EXAMPLE: At the time Justine prepared her will, she was undergoing psychiatric treatment and had attempted suicide a couple of times. This instability did not give rise to an inference of lack of testamentary capacity. See, e.g., In re Hatzistefanous’s Estate, 77 Misc. 2d 594 (1974).

Coupled with testamentary capacity is testamentary intent. Testamentary intent involves the testator having subjectively intended that the document in question constitute his or her will at the time it was executed. There is a presumption that the testator is familiar with and understands the contents of the will, since it was prepared at his or her direction. See, e.g., Jedlicka v. Wilkins, 459 S.W.2d 956 (Tex. 1970).

EXAMPLE: Marvin, who was unable to read or write, was gravely ill at the home of one the beneficiaries of the will when he signed it (with an X). The will disinherited his only child, Meryl, who was in the same house at the time and did not know that her father was executing a will. The beneficiary in the will was not related to Marvin and there was no showing that he ever gave anyone instructions to write his will or requested that one be prepared. Additionally, there was no evidence that Marvin knew the contents of the document he had signed. As such, the will was denied probate. See, e.g., Kelly v. Settegast, 2 S.W. 870 (Tex. 1887); Bailey v. Clark, 561 N.E.2d 367 (Ill. 1990).

Undue influence

A will or gift contained in the will may be set aside if it was the result of undue influence. Undue influence involves substituting another person’s will for that of the testator. See, e.g., In re Dunson’s Estate, 141 So.2d 601 (Fla. 1962); Rothermel v. Duncan, 369 S.W.2d 917 (Tex. 1963). The burden of proof is on the person contesting the will.

The factors considered in making a determination of undue influence are:

  • Another person actually exerted his will on a susceptible testator.
  • The effect of this influence was to completely overtake the testator’s mind and will.
  • This influence produced a will or a gift that expressed the intent of the other person rather than the wishes of the testator.

Undue influence is difficult to prove because there is usually no direct evidence of its occurrence; rather the evidence is more often circumstantial. Direct evidence consists of eyewitness testimony. Circumstantial evidence requires an inference of a conclusion based on the weight of the evidence under consideration.

In addition, the evidence must be substantial and go beyond mere suggestion, innuendo or suspicion. See, e.g., Core v. Core’s Administrators, 124 S.E. 453 (Va. 1924). Merely having a motive, the opportunity or even the ability to exert undue influence is not sufficient to prove it actually happened. See, e.g., Kar v. Hogan, 251 N.W.2d 77 (Mich. 1976).

EXAMPLE: Virgil was 92-years-old and suffering from arteriosclerosis when he executed a will that gave $5,000 to each of three daughters, Florence, Jasmine and Heidi, and devised his residuary estate (valued at $500,000) to his housekeeper, Judith, of 20 years. Virgil’s three daughters contested the will, claiming that Judith had exerted undue influence on their father. They had no direct evidence to support their claims. Rather, they could only attest to his weak physical condition and their belief that their father had become more dependent on Florence in his later years. The court held that their proof was insufficient to invalidate the will. The circumstantial evidence only showed the motive and opportunity for exercising undue influence, but did not show that influence had actually been exerted. As such, the will was admitted to probate. See, e.g., In re Colbeck’s Will, 45 A.D.2d 796 (1974).

If the elimination of a provision created under undue influence does not defeat the overall testamentary plan, it can be stricken; the rest of the will is still valid. See, e.g., Williams v. Crickman, 405 N.E.2d 799 (Ill. 1980). In contrast, if this revision alters the testator’s wishes for the disposition of his property, the entire will is set aside. See, e.g., In re Klage’s Estate, 209 N.W.2d 110 (Iowa 1973).

Confidential relationship

The mere existence of a confidential relationship between the testator and a will beneficiary does not, by itself, give rise to a presumption of undue influence unless the beneficiary played an active role in procuring the will. See, e.g., In re Arnold’s Estate, 16 Cal. 2d 573 (1940). Yet, in most jurisdictions, the presence of a confidential relationship lowers the bar for establishing the existence of undue influence. See, e.g., McQueen v. Wilson, 31 So. 94 (Ala. 1901).

Other courts recognize a rebuttable presumption of undue influence if a three-part test is met. Once these elements are established, the burden shifts to the proponent of the will to prove that it was not induced by undue influence. See, e.g., Rhoades v. Chambers, 759 S.W.2d 398 (Mo. 1988).

  1. A confidential relationship existed between the testator and the beneficiary at the time the will was executed.
  2. The beneficiary played some active role in preparing the will.
  3. The disposition under the will is “unnatural,” in that the questionable beneficiary receives much more than the testator might normally be expected to leave to that person.

EXAMPLE: Roderick was 87-years-old, yet he had never prepared a will. He had three grown children and many grandchildren; however, they were not a very close knit family, since they lived far away. Yet, they did manage to get together about once a year. Roderick was a devout Catholic, very supportive of his local parish and very close to Father Michael. Father Michael introduced Roderick to one of the parishioners, who was a lawyer, after discovering that Roderick had been sick recently. Father Michael took an active role in helping Roderick prepare the will, which left all of his $800,000 in assets to the church. After Roderick’s death, his children contested the will. In assessing the three factors of the undue influence test, the court would probably set aside the will for the following reasons: the requisite confidential relationship was present—priest-penitent; Father Michael played an active part in the preparation of Roderick’s will; and the disposition of all of his assets to the church was “unnatural,” given the fact that Roderick had living descendants.

In contrast, no presumption of undue influence arises from the confidential relationship that normally exists between a husband and wife. See, e.g., In re Estate of Glogovsek, 618 N.E.2d 1231 (Ill. 1993). One party can be more influential on the other’s decision making without rising to the level of undue influence.

No-contest “in terrorem” clause

Testators can try to dissuade heirs upfront from contesting the will by adding an “in terrorem” or no-contest clause to the instrument. This restriction provides that any person who contests the will shall forfeit all interests he otherwise would have received under the will. Jurisdictions are split as to the validity and effect of no-contest clauses.

In most states and under the UPC, a beneficiary who unsuccessfully challenges a will does not forfeit the gift if the court finds that the beneficiary contested the will in good faith and had a very good reason. See, e.g., In re Seymour’s Estate, 600 P.2d 274 (N.M. 1979); UPC § 3-905. Conversely, a few states enforce no-contest clauses, even if the contestant has a valid reason for bringing the challenge. See, e.g., Barry v. American Security & Trust Co., 135 F.2d 470 (D.C. Cir. 1943); Rudd v. Searles, 160 N.E. 882 (Mass. 1928); Commerce Trust Co. v. Weed, 318 S.W.2d 289 (Mo. 1958); Dainton v. Watson, 658 P.2d 79 (Wyo. 1983).

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