Will contest
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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 where a beneficiary under the will stands in a confidential relationship with the testator. For example, where a testator leaves property to the attorney who drew up the will. However, this is dependent of the circumstances of such a relationship and the burden is initially on the person contesting to show undue influence.
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.
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[edit] Standing to contest a will
Typically, standing to contest the validity of a will is limited to two classes of persons:
- Those who are named on the face of the will (i.e. any beneficiary);
- Those who would inherit from the testator if the will was invalid
The following example is instructive: Monica makes a will leaving $5,000 each to her husband, Chandler, her brother, Ross, her neighbor, Joey, and her best friend, Rachel. Chandler tells Monica that he will divorce her if she does not disown Ross, which would humiliate her; later, Ross tells Monica (untruthfully) that Chandler is having an affair with Phoebe, which Monica believes. Distraught, Monica rewrites her will, disowning both Chandler and Ross. The attorney who drafts the will accidentally writes the gift to Rachel as $500 instead of $5,000; and also accidentally leaves Joey out entirely.
Under these facts, Chandler can contest the will as the product of fraud in the inducement, because if the will is invalid, he will inherit Monica's property, as the surviving spouse. Ross can contest the will as the product of Chandler’s undue influence, because Ross will inherit Monica's property if Chandler’s behavior disqualifies Chandler from inheriting (note, however, that many jurisdictions do not consider a threat of divorce to be undue influence). Rachel has standing to contest the will, because she is named in the document – but she will not be permitted to submit any evidence as to the mistake because it is not an ambiguous term. Instead, she will have to sue Monica's lawyer for legal malpractice to recover the difference. Finally, Joey is neither someone who stands to inherit from Monica, nor named in the will, and therefore is barred from contesting the will altogether.
[edit] Grounds for contesting a will
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The most common grounds, or reasons, for contesting a Will are:
- Lack of disposing mind and memory or Testamentary capacity
- Insane delusion
- Duress
- Fraud
- Undue influence
Some jurisdictions permit an election against the will by a widowed spouse or orphaned children. This is not a contest against the will itself (the validity of the will is irrelevant), but an alternate procedure established by statute to contest the disposition of property.
[edit] Practicability of contests
Courts will not necessarily look to "fairness" during will contests. In other words, just because the provisions of a will may seem "unfair" does not mean that the will is invalid. Therefore, wills cannot be challenged simply because they seem unfair. The decedent has a legal right to dispose of his or her property in any way that is legal. Due to a large number of will contests, judges are often wary of contests especially when involving the willing of property to charitable organizations.
[edit] Consequences
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Depending on the grounds, the result may be
- Invalidity of the entire Last Will and Testament, resulting in an intestacy.
- Invalidity of a clause or gift, requiring the court to decide which charity receives the charitable bequest, using the equitable doctrine of cy pres.
- Dimunition of certain gifts, and increase of other gifts to the widowed spouse or orphaned children, who would now get their elective share.
[edit] See also
[edit] Links
[edit] References
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