A woman expects to inherit her widowed mother’s estate…but the bulk of it passes to her mother’s boyfriend instead. A man is left 25% of his parent’s estate…and his sister gets 75%.
People blindsided by uneven, unfair or unexpectedly small inheritances from a loved one’s estate often wonder whether they should challenge the will in court. The lost assets likely aren’t the only reason they’re upset—distress over the deceased loved one’s choices about how to divide the assets can become intertwined with the hurt and anger they feel at being treated unfairly.
Here are some of the things to think about if you ever consider this course…
HOW TO CHALLENGE
You cannot challenge a will simply because you think that you deserve more or because you didn’t receive an asset that you had been told you would get. Wills can be challenged for only certain reasons that often are very difficult to prove…
Someone exerted undue influence over the deceased, affecting the distribution of assets. Not all influence constitutes undue influence. Typically, there must be a coercive element.
Example: A home health aide refuses to provide an infirm client with food or medicine until the aide is named a beneficiary in the client’s will.
Your odds of proving undue influence may be improved if the deceased had infirmities that made him/her dependent on a beneficiary who received a surprisingly large inheritance…if this beneficiary attempted to prevent other potential heirs from seeing the deceased prior to death…and/or if there are any prior wills naming others as heirs before this beneficiary gained control.
The deceased was not competent at the time the will was signed. This might be difficult to prove. Even if there’s no question that the deceased was in a state of mental decline, the will may have been signed years earlier when his mental state was less clear-cut. Your odds of success are much better if there are medical records and other external evidence from the time period when the will was signed establishing the deceased’s lack of competency.
The will was not executed according to the laws of the state. Each state has detailed laws governing how a will must be signed and witnessed.
Example: A man’s will was successfully challenged and declared invalid because one of his witnesses was not in the room at the moment that the will was signed, as required.
State laws also dictate the minimum share of the estate that a surviving spouse should receive. Generally, states require that one-third of the estate go to the spouse if the deceased has children and one-half if there are no children.
The will is a fraud or forgery. A will can be challenged on the grounds that it is not actually the deceased’s will, it was not actually signed by the deceased or that it was signed by the deceased under false pretenses—for example, if the deceased was told that he was signing something other than a will.
Three scenarios that could improve the odds that a challenge to a will succeeds (or, more commonly, that the executor’s attorney offers a settlement before the case reaches court)…
The will was changed shortly before the deceased passed away from a prolonged health problem. People suffering from debilitating illnesses, especially illnesses with cognitive impact, may be particularly vulnerable. They often are dependent on care providers. That opens the door to challenges based both on incompetence and/or undue influence.
The will is inconsistent with the deceased’s beneficiary designations in a way that favors one particular heir.
Example: The deceased had two IRAs, three insurance policies and a deed to a home that all listed his two sons as equal beneficiaries for many years—yet his recent will lists just one son as the sole heir. The disinherited son quite reasonably questioned whether his brother had exerted undue influence over his father to alter the will.
The will seems to disinherit a descendant accidentally.
Example: A will divides the estate evenly among a man’s children but is never updated to include a child born after the will is drafted. While the language in most wills is broad enough to address this, sometimes it is not.
WHO CAN CHALLENGE
There also are strict rules about who can challenge a will in court. Generally, you can challenge only if you are a named beneficiary in the will…or if you would inherit according to your state’s intestate succession laws (the laws spelling out inheritance rules when there is no valid will)—which occasionally means that even distant relatives can challenge if there are no direct descendants or a surviving spouse.
Additionally, you might be able to challenge if you were a beneficiary in a prior version of the will that would once again be valid if the current will were ruled invalid by the court. However, copies of the prior version often are destroyed to avoid challenges such as these.
DRAWBACKS OF CHALLENGING A WILL
Challenging a will in court is very expensive. Expect attorney fees to start at $10,000 to $25,000 and potentially much more. Thus it may not make financial sense to challenge if the estate is small.
And that’s only half the story—the executor or trustees of the will that you challenge will pay their legal bills out of the estate, reducing the amount that remains for heirs.
Will challenges also can force families to take sides over who should inherit. Family members often end up aligned against the individual who brought the challenge because challenges deplete the size of the estate and delay its distribution.
Contact the executor before you challenge a will in court, and calmly say, “I’m not clear about [some element of the estate]. Could you help me understand it?” Even if the answer is not what you’re hoping for, it could reassure you that you’re not being cheated and eliminate the desire to go to court.
Consider paying an attorney on a per-hour basis before you call the executor. This attorney can help you determine whether you’re being treated fairly…lay out your legal options…review letters or e-mails you send to family members or executors about the estate…and assist you so that you don’t miss deadlines if you decide to challenge the will in court.
Downplay the fact that you have hired a lawyer—if other family members learn this, it could ratchet up the tension or encourage them to hire lawyers, too, increasing the odds of a court battle. You may wish to choose an attorney who is very familiar with wills but who does not litigate, so he has little incentive to steer you into an expensive legal battle if you’re not likely to win. A probate attorney often is a good choice.
Alternatively, if your family has used the same accountant or financial adviser for years, consider bringing your concerns to him/her.
Source: Martin Shenkman, CPA, JD, an estate- and tax-planning attorney with the law firm Martin M. Shenkman, PC, which has offices in New York City and Teaneck, New Jersey. He is author of 35 books, including Inherit More (Wiley) and Estate Planning for People with a Chronic Condition or Disability (Demos Health). www.LawEasy.com