Grounds To Contest a Will






Grounds To Contest a Will

Estate Will

Protecting Your Estate from a Will Contest

When Mickey Rooney died in 2014 at the age of 93, his will was contested by his estranged wife and biological children. He had disinherited them and left his meagre estate to a stepson and the stepson’s wife, who had served as Rooney’s caretakers for the last two years of his life.

Rooney’s executor stated on CNN that Rooney was clearly of sound mind when he signed his will and that the challenge was “totally without merit” since Rooney signed his will right after filming his scenes in “Night at the Museum,” during which he had no difficulty remembering his lines. The claims were eventually dropped and the will was probated.

Grounds for a Will Contest

A will or trust can be contested on the following grounds:

  • Lack of testamentary capacity. Where the mental state of the testator is challenged. A decedent may be found to lack testamentary capacity if they do not know: (1) What property they own, (2) the natural objects of their bounty (e.g., their relatives and heirs), (3) the nature of a will and how they are disposing of their property, and (4) how all these things together affect the ultimate disposition of their property.
  • Undue influence. Where a person has imposed upon the free will of the testator and has excessively benefitted from their position of power over them.
  • Duress. A form of undue influence where the testator is compelled to execute a will following threats of violence or another wrongful act.
  • Fraud. There are two kinds of testamentary fraud: (1) Fraud in the inducement, where the testator is fooled into believing false facts that are instrumental in causing them to make a testamentary gift that they otherwise would not have made; and (2) fraud in the execution, where a person misrepresents a document for signing as the testator’s will when it is in fact a different document that is more to their personal advantage.
  • Mistake. Technical defect due to failure to adhere to legal formalities in the drafting or signing of the will, other errors and omissions (e.g., missing provisions, not witnessed or witnessed improperly). Note that most courts will attempt to implement the provisions of a will despite a mistake, and may even create a “constructive trust” in order to implement the plain intent of the testator.
  • Revocation. Where another will that is dated more recently than the one submitted to the court is produced.

Note that laws regarding will and trust creation and execution tend to vary somewhat from state to state, so make sure that your estate planning attorney is licensed in your jurisdiction.

In our last post in this series, we will discuss ways to minimize the chances of someone contesting the terms of your will or revocable living trust.

(Why?)

Published at Fri, 16 Jun 2017 11:26:00 +0000