What are the chances of successfully contesting a Will?

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What are the chances of successfully contesting a Will?

My aunt and uncle named my sister as their main heir and executor of their Will 8 years ago. My aunt insisted that she inherit their home as she is their goddaughter and they had no children. They had a Will drafted naming her as the only individual to inherit their home. My aunt has since passed. My cousins have been weaseling their way in there and my uncle is vulnerable since he lives alone. My uncle has since recently revised his Will. Only 2 months after my aunt died, he revised it leaving everything to my scavenger cousins and nothing to my sister. This was not my aunts wishes but what recourse does my sister have? My uncle’s mind has been slipping; he’s 85. What chance does she have to contest?

Asked on March 7, 2014 under Estate Planning, New York

Answers:

FreeAdvice Contributing Attorney / FreeAdvice Contributing Attorney

Answered 7 years ago | Contributor

A will contest, in the law of property, is a formal objection raised against the validity of a will, based on the contention that the will does not reflect the actual intent of the testator (the party who made the will). Will contests generally focus on the assertion that the testator lacked testamentary capacity, was operating under an insane delusion, or was subject to undue influence or fraud. A will may be challenged in its entirety, or only in part.

In many states, a legal presumption of undue influence arises when there is a finding of a confidential (or fiduciary) relationship, the active procurement of the will by the beneficiary and a substantial benefit to that beneficiary. For example, where a testator leaves property to the attorney who drew up the will. However, this is dependent on the circumstances of such a relationship and the burden is initially on the person contesting to show undue influence. As it is required for invalidation of a will, undue influence must amount to "over-persuasion, duress, force, coercion, or artful or fraudulent contrivances to such a degree that there is destruction of the free agency and will power of the one making the will. Mere affection, kindness or attachment of one person for another may not of itself constitute undue influence.” Heasley v. Evans, 104 So. 2d 854, 857 (Fla. 2d DCA 1958)

A will may include an in terrorem clause, with language along the lines of "any person who contests this will shall forfeit his legacy", which operates to disinherit any person who challenges the validity of the will. However, since this clause is within the will itself, a successful challenge to the will renders the clause meaningless. Many states consider such clauses void as a matter of public policy.

Answer: Based upon what you have written the chances of being successful appear to be 50/50.


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