Will Contests

My Daddy ( a lawyer ) used to say Judges are like a box of chocolates. You never know what you’re going to get.

But there is one thing I know you will get when you contest a will most of the time: Defeated.

Most of these cases are brought on three basis; 1 )Testamentary Capacity: for example the Dad’s mind was gone when he signed this will or 2) Undue Influence: someone taking an unusually large or unnatural gift had a position of trust with Dad or 3) Fraudulent Misrepresentation in the execution of the document: Dad signed a will when he was told it was a contract to buy a new Ford.

This is a complex area of shifting presumptions of law which start out favoring the will as written, and is peppered with problems of proof to over come that presumption ranging from excluded testimony due to the Dead Man’s Statute to just how good your medical expert is who saw Dad before he signed this will.

This trouble is compounded by the standard of proof. The contestant has to prove these things that would invalidate the will by clear cogent and convincing evidence. That is the civil equivalent of putting a man in jail, well beyond a preponderance.

Often the question is would Dad have any reason to do what the will says. If so, it is doubtful the there is much of a contest. Better off spending the attorney fees on a real box of chocolates.

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2 comments on “Will Contests

  1. Geoff says:

    I divide will contests into two categories: ones where an attorney prepared and oversaw the execution of the will and those where an attorney was not involved.

    If an attorney was involved in the preparation and execution of the will, you have to essentially prove that the attorney committed malpractice in order to prevail in a will contest.

    • Good point. How cooperative will the drafting lawyer be as a witness? Somehow I dont think he is going to say his client wasnt able to identify the objects of his bounty.

      Some lawyers actually have a video done of the client signing the will to avoid this claim. Much like a David Lynch film, everyone sees what they want in the picture post mortem.

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