A will contest (the legal term for challenging a will) is a legal dispute between family members or other people who were close to the person who created the will.
It is just what it sounds like: a contest.
In one corner is a person who is benefiting from a will or trust. Perhaps the will leaves everything to that person. In the other corner are other family members or friends who feel they have been wrongly disinherited.
A person creating a will or trust certainly has the right to leave their assets to whomever they like. Most beneficiaries of wills and trusts are deserving people who have played an important role in a person’s life. Unfortunately, I occasionally meet less-deserving beneficiaries who have manipulated older relatives for personal financial gain.
There are two main legal arguments for contesting a will.
- Lack of competence of the person who created or changed the will
- Undue influence by someone who manipulated the person and convinced them to change the will
My more than 30 years of experience contesting wills has taught me an important lesson. Although you can talk all day about the legal theories for winning a lack of competence or undue influence case, what ultimately sways a jury are the facts.
Here are some of the things I subpoena to discover the facts:
- All written checks over the last 5 years. I often find a continual degradation of the signature of the person who died. Although this factor in and of itself does not prove lack of competency, an exhibit board that places these checks next to each other is a powerful piece of evidence. If five years ago Aunt Mary was preparing and signing her own checks and today she is scribbling her signature with an “X”, a judge or jury may become very suspicious. Sometimes, I’ve discovered that the person who is benefiting under the trust or will has been signing the checks. In one case, I found a granddaughter buying personal items from her grandfather’s account. She had persuaded her grandfather to disinherit her parents. Needless to say, the granddaughter quickly came to settlement after the facts were disclosed.
- All nursing home records and police reports.Workers at nursing homes and assisted living centers keep careful notes documenting bizarre behavior of residents. In part this is for the workers’ own protection. But the information in these notes can provide valuable evidence showing lack of competence. For example, say a nursing home worker documents that Grandma was outside in her nightgown chasing ducks down at the pond. Then three weeks later, Grandma signed a trust leaving everything to Uncle Joe. These facts will make a jury or judge suspicious about Grandma’s alleged competency at the time of the trust signing.
- All pharmacy records. I review prescriptions and medications and look for patterns of excessive refills. I also look at who was filling the prescriptions. If Aunt Suzie is repeatedly filling Grandma’s prescriptions for Vicodin and Xanax, this could support a claim of undue influence or lack of competence.
Usually one single fact isn’t enough to prove undue influence or a lack of competence. However, when multiple facts are combined, they can create a compelling narrative. Frequently, I prepare an exhibit for the court showing a timeline of events occurring soon before and after the signing of the will or trust. Together, the multiple events can build a strong case for setting aside a will or trust.
Still have questions? Contact me now.