Two Ways Beneficiaries Can Contest Your Will After You Die
With your Will, you're telling the state how you wish your assets to be distributed
. But after you die, a beneficiary, or someone left out, can still contest your Will on either of two grounds. This article explains these grounds and thereby shows you how you can preserve your wishes against someone contesting your Will.
Typically, people leave their children more or less equal shares of their estate. If not, perhaps your children understand and agree with your reason to favor one more than the rest.
But occasionally, you may want to favor one child substantially and that just doesn't sit well with the others. In that case, after you die the less-favored children may contest your will. Of course your Will is supposed to reflect your intentions which you have every right to make, since your money is yours to do with as you intend. So the only way to contest your Will is to attack the very basis upon which you arrived at those intentions - with the inference that your intentions were not reflective of what you really intended.
The two ways to make such an attack - i.e. to contest your Will - are:
1. your 'lack of mental capacity' when you made (executed) your Will, or
2. 'undue influence' on you when you executed your Will
1. Lack of mental capacity:
The mental capacity to make a Will requires that a person be at least 18 and 'of sound mind'. Being of 'sound mind' while making your Will implies that you're "capable of understanding the general nature of the business in which you're engaged and the particular distribution you're effecting". Specifically, you recognize the property you're disposing of and to whom you're bequeathing it, and why.
With such a standard, even a person who easily forgets or who is sufficiently impaired as to justify the appointment of a guardian may still have the capacity to make a valid Will. So proving you lacked mental capacity can be very difficult prove. To do so, you'd have to appear crazy to everyone almost at all times surrounding the time you made your Will.
However, if a condition of at least diminished capacity could be somewhat established for you, their claim for the second reason - 'undue influence' - may be made more effectively. That's because with a diminished capacity to analyze your circumstances and the choices you're confronted with, you're more prone to be influenced by someone else - especially if it's an overbearing influence on you.
2. Undue influence:
'Undue influence' comes into effect when you - the testator or Will maker - have been subjected to 'mental, moral or physical' exertion which destroys your 'free agency' so that you can't 'follow the dictates of your own mind and will - and [therefore] accepts, instead, the domination and influence of another.'
'Undue influence' often occurs (or becomes suspect) when you (the testator) live with or depend upon one your children - or other person - and end up favoring that person unduly in your Will. In that case, that influencing person will be presumed to have put 'undue influence' on you if, additionally, he or she:
* handles arranging for the drafting or execution of your Will,
* accompanies you to the lawyer's office and
* is present at discussions with the lawyer concerning your Will, and
* conceals the fact that your Will had been executed, or
* denies family members access to the you.
Such actions are 'telling' signs that that person intends to control how you arrive at your intentions.
-How to preserve the intent of your Will:
If you feel that you're of sound mind and not subject to undue influence in your decisions when you make a Will that includes distributions that you recognize may trigger feelings of unfairness, then you should take steps to ward off the ways your Will can be contested.
So, preserve your intentions against people contesting it by not using the person you intend to disproportionately favor in your Will as a witness to your Will. To help clarify your intentions for after you die, you can include with your Will a letter from your attorney or estate planner - or just from yourself - explaining the reasons why you're especially favoring a person in your Will.
by: Shane Flait
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