When to contest a Will

By Gina M. Barry, Esq. Partner, Bacon & Wilson. P. C. Special to PRIME Imagine that you've just received the terrible news that your mother, who was an elderly widow, has passed away. After taking care of all of the funeral arrangements with your siblings, everyone's attention turns to your mother's Will. Although you were close to her throughout your life, you learn that your mother's Will provides only a very small sum for you and much more to your siblings. You are hurt, shocked and outraged. You are certain that your mother made a mistake, and you begin to question whether you should contest the Will. While unhappiness with the disposition scheme in a Will alone is not sufficient, there are various grounds upon which a Will may be successfully contested. Knowledge of these grounds is crucial when deciding whether a Will contest should be undertaken. The most common grounds for challenging a Will are lack of mental competence and undue influence, although other less commonly used grounds, such as fraud, also exist. To validly execute a Will, the person making the Will, who is also known as the testator, must be at least 18 years old, mentally competent and free from undue influence. The Will must be signed by testator or by another person that the testator expressly directs to sign the Will. The Will also must be attested to and subscribed in the presence of the testator by two or more independent witnesses. If any of these formalities are missing, a Will contest may be in the making. As to mental competence, the question is whether the testator was of sound mind at the time the Will was executed. When determining whether the testator had capacity to execute a Will, the Court considers whether they had the ability to understand and carry in their mind the nature and situation of their property and their relations to persons who would naturally have some claim to their remembrance. If those basic understandings are lacking, then there is no legal ability to sign a Will. A successful challenge on this basis will require securing a physician's opinion as to the mental incompetence of the testator at the time the Will was executed. Note well that the incompetence must persist at the time the Will is executed, as it is possible for a person who is mentally incompetent to enjoy a moment of lucidity during which a valid Will may be executed. When contesting a Will on the basis of undue influence, the person challenging the Will must prove that coercion has taken place. Whether mental, physical, or moral, the coercion must overtake the sound judgment and genuine desire of the person making the Will. In order to prove undue influence, the person contesting the Will must show that (1) an unnatural disposition has been made (2) by a person susceptible to undue influence (3) to the advantage of someone with an opportunity to exercise undue influence and (4) who in fact has used that opportunity to procure the contested disposition through improper means. Undue influence often occurs in private. As such, it is usually very difficult to prove. A Will contest may also be based upon fraud. Proving fraud requires evidence that the testator was affected by a false representation of fact. Further, the false representation must have induced the testator into executing the Will. For example, a document is placed in front of the testator and they are told that it is their Will as they reviewed it prior to signing; however, it is not that Will, it is a revised version with different provisions. The testator relies on that representation and executes the Will fully believing that they executed the Will they intended to execute and not a revised version. As you might imagine, it is the rare case where fraud can be successfully proven. Another important detail to be aware of when deciding whether to contest a Will is whether there is a no-contest clause included in the Will. A no-contest clause generally provides that if you contest the Will, you will receive nothing from the estate and that the estate will be distributed as if you had predeceased the testator. While this clause may be void if the Will is successfully challenged, if the challenge is unsuccessful, the person challenging the Will could be forfeiting the sum they were originally given in the Will. Understanding the grounds for challenging a Will is the first step when deciding whether to proceed. Contesting a Will is never an easy task, emotionally or legally. Should you believe that you have valid grounds for contesting a Will, it is highly recommended that you contact an attorney experienced with Will contests to discuss your likelihood of success prior to proceeding. Gina M. Barry is a Partner with the law firm of Bacon Wilson, P.C., Attorneys at Law. She is a member of the National Association of Elder Law Attorneys, the Estate Planning Council, and the Western Massachusetts Elder Care Professionals Association. She concentrates her practice in the areas of Estate and Asset Protection Planning, Probate Administration and Litigation, Guardianships, Conservatorships and Residential Real Estate. (413) 781-0560 or gbarry@baconwilson.com.