How to challenge a will
Your will is your last expression of gratitude and benevolence to your loved ones surviving you. The vast majority of the time, heirs are grateful for any inheritance they get. However, sometimes heirs do not believe the intentions expressed in the will accurately reflect the intentions of the deceased. Other times heirs simply are upset with what is left to them and feel entitled to more. Both of these scenarios can lead to an heir or heirs challenging the validity of a will.
The phrase “will contest” is often used to describe one of the scenarios above where an heir disputes the integrity of the will. This is somewhat inaccurate. A will contest is actually an action taken by an heir to dispute that the will submitted to the probate court is not the deceased’s last will.
• Contesting the validity of a will can fall under two types of court action.
• A “will contest” challenges the court’s version of the deceased’s will.
• “Undue influence” claims the deceased was susceptible when the will was made.
For example, the executor for Mary submits a will signed by Mary in 2005 to the probate court as Mary’s last will. Fred, Mary’s son, believes his mother signed another will in 2009 that left more to him and less to his sister Betty. Fred files a will contest action with the probate court and provides evidence that his mother signed a new will in 2009. Fred’s evidence will need to be the new will itself, or he does not stand a good chance of proving his case. If Fred can provide a will signed in 2009 to the probate court and the court verifies its authenticity, the new will will be adopted by the court.
This example illustrates the need for everyone to document when their will or estate plan was completed and the location of the documents. It can happen that a person executes a new will but does not bother to tell any of his or her heirs. If the executor of the estate finds an earlier will and does not know about the later will, that person will rely on the earlier will, and the last wishes of the deceased will not be carried out.
What most people call a “will contest” is actually an “undue influence” matter. When an heir believes another heir or other person caused the deceased to write a will that does not truly reflect the deceased’s wishes, the heir may file an undue influence action with the probate court.
Using the previous example, Betty finds out her mother, Mary, left her half as much as her brother Fred. Betty believes Fred unduly influenced Mary to the point that Mary gave Fred more. Specifically, Betty believes her mother’s failing physical and mental health allowed Fred to persuade her to change her will so Fred would get more.
Not easy to prove
Proving undue influence is not an easy task. The person asserting the matter must first show the deceased person was susceptible to influence at the time the will was drafted. Susceptibility is usually due to advanced age or mental or physical disabilities; normal, healthy people are assumed to not be susceptible to undue influence.
Next, opportunities for undue influence must be shown. For example, an elderly person moving in with a child and having little contact with anyone else is an opportunity for undue influence.
Lastly, it must be shown that undue influence was actually exerted on the deceased and that the influence caused the deceased to change his or her will.
Obviously, the deceased person is not available to speak to the alleged undue influence. Therefore, the person attempting to prove the undue influence must rely on circumstantial evidence, which is never as strong as direct evidence. So, not only is the burden significant to prove undue influence, but the evidence available to support the claim is also somewhat unreliable.
To avoid heirs challenging a will, an “in terrorem clause” is often included in a will. This essentially causes an heir to be disinherited or their share of inheritance reduced if they challenge a will. An heir can usually ask for the court’s interpretation of an ambiguous term or condition of the will without triggering the in terrorem clause. Other than that, most challenges on the will will trigger the clause. This tends to be an effective means of avoiding challenges to the will.
This article published in the October, 2010 edition of OHIO FARMER.