Will Contests

A will contest occurs when someone challenges a will and asks that it be thrown out as invalid.

Although they are relatively rare, will contests do occur. They can only be brought by a person with standing – that means something to gain, such as inheriting a larger share of the deceased’s estate, or greater voice in managing the estate, if the will is found to be invalid and thus will not be admitted to probate.

A will contest can be brought by someone who would have inherited as a matter of law if there was never any will. For example if the deceased’s sole survivors are a son and a daughter, and the will leaves 90% of the estate to the daughter and only 10% to the son, the son has standing to contest the will because if it’s found invalid, he’d be entitled to a 50% share.

A will contest can also be brought by a someone who would get more under an earlier will than under the later will being offered for probate. For example, say in the deceased’s 1995 will he wrote in a bequest of $100,000 to a Chicago charity. Several years later he moved to Arizona and in 2010 he wrote a new will leaving nothing to that charity. The charity would have standing to challenge the 2010 will.

You just can’t challenge a will and start a will contest without some legal basis. Th most common reasons to challenge a will are:

It was not properly signed and witnessed as required by the state’s laws. Most states require the signature be witnessed by at least two witnesses who have  nothing to gain under the will.

Another common reason for challenging a will is that the deceased lacked what the court’s refer to as testamentary capacity. This means that the person who made the will was either too young, mentally ill, or was otherwise incapable of understanding the process or implications of designating who should receive the property.

A will also may be invalidated when the process of creating the document involved fraud, force, or what is sometimes called undue influence. For example, if it can be proven that an elderly, very sick or otherwise vulnerable person was essentially tricked or bullied into making the will, it would be found invalid and thus not be admitted to probate.

Will contests may be rare, but they involve a significant amount of legal work, and almost always require the services of a very experienced lawyer.

Case Studies: Legal Challenges and Insurance Implications

Case Study 1: The Smith Family’s Will Contest and Liability Insurance

The Smith family decided to contest the validity of their deceased relative’s will, suspecting foul play and undue influence. They engaged an experienced estate planning attorney who assessed the situation and advised them to gather evidence to support their claims. During the investigation, it was discovered that the deceased had a close relationship with a caregiver who might have exerted undue influence.

The attorney recognized that the caregiver’s actions could potentially be covered under liability insurance policies, such as professional liability or caregiver insurance. This revelation prompted the Smith family’s attorney to involve the caregiver’s insurance company in the dispute, which ultimately led to a settlement that revised the distribution of assets in favor of the family.

Case Study 2: The Johnson Family’s Will Contest and Title Insurance

The Johnson family faced a situation where the deceased had sold a property shortly before their passing. However, the family suspected that the property sale was fraudulent and that the deceased did not have the legal capacity to complete the transaction. To contest the will and property sale, the Johnson family’s attorney advised them to consult with a title insurance company.

By providing evidence of the deceased’s incapacity and potential fraud, the Johnson family was able to trigger the title insurance policy’s coverage, leading to a resolution where the property sale was deemed invalid, and the property was rightfully returned to the family’s possession.

Case Study 3: The Thompson Family’s Will Contest and Life Insurance

In the case of the Thompson family, the deceased had named an unexpected beneficiary in their life insurance policy, which contradicted the wishes expressed in their will. The family suspected foul play and engaged an estate planning attorney to contest the will and explore the possibility of challenging the life insurance beneficiary designation.

The attorney discovered evidence that the deceased had been coerced into changing the life insurance beneficiary and that the designated beneficiary had exerted undue influence. Through legal proceedings, the Thompson family successfully contested both the will and the life insurance beneficiary designation, resulting in a revised distribution of assets in accordance with the deceased’s original intentions.