Wills and Trusts: Challenging Their Provisions – Emotions run high after someone dies, and that’s when resentments can surface. Disappointed heirs may want to challenge the final wishes of the deceased. If they want to proceed, they need to do so on the basis of one of four legal grounds:
- Undue influence — This is difficult to prove, but if the deceased was pressured extensively by someone to change the will, the would-be heirs may have a case.
- Fraud — Also not easy to prove, but if the will’s author was tricked into signing — maybe told that it was a deed or some other legal document — the will is invalid.
- Improper execution — If the will was not prepared or executed properly under the laws of the state it was prepared in, it could be thrown out in court.
- Lack of capacity — If the will maker was not mentally capable of thinking out the issues involved at the time the will was created, it could be invalidated.
Will it be worth the effort to contest? Look at the money involved. If you’re interested in proving wrongdoing and not in padding your bank account, perhaps you will decide it’s not worth the pursuit. It costs tens of thousands of dollars to bring a case — how much is the payoff worth to you? Do you really want to go through all the time and expense on principle? However, if there is a suspicion of elder abuse, contesters may be able to pursue criminal charges against the offenders. That may make more sense than pursuing a cost-prohibitive civil case does.
And what about the cost to personal relationships? Feeling slighted by a late relative and missing out on a potentially large inheritance can be painful. But realize that there’s an emotional strain to going to court. Contesting the will may very likely affect relationships with the adversary; you may end up never speaking to that person (or those persons) again. And you should be warned: Successful will contests are few. Many are settled out of court.
How about contesting a trust? Has a trust omitted you in favor of your brother or sister? Like wills, these can be set aside based on the same reasons as a will, but again, this result can be difficult to achieve. You need to take timely action.
Courts consider accounts of convenience, too. If you know that the deceased didn’t intend to keep a joint owner on a bank account, but only added the name as a convenience to help with bill paying or financial management, or as a “poor-man’s will” to save money, courts can and do order the asset to be turned over to the estate and shared with other beneficiaries.
This also can apply to brokerage accounts and stocks. The key is always the intent of the person who added the name at the time it was created.
If you feel there’s a reason to challenge a will or trust, first set aside your emotions, and then act with logic and consult your attorney.
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