Will Contests

In general, people have a freedom of disposition, allowing them to give away their property during life or after death, and to decide who will get it and in what form. People may decide to give more to those who offered better companionship or who are needier, or to favored charities.

Every state and most other countries have laws that restrict a testator's right to disinherit a presumptive heir, especially a surviving spouse. Furthermore, the courts are highly disposed to distribute property to close family members and would more likely to entertain a will contest where the will gives the property to unconventional beneficiaries, especially at the expense of close family members. Hence, this legal bias favors presumptive heirs, who are also most likely to challenge a will or a provision if they are disappointed.

Why Do People Challenge Wills?

The main reason is, of course, money. The legal system also gives the will challenger much to gain and little to lose by contesting a will, since the estate usually pays for its defense costs and sometimes the good-faith plaintiff's costs as well. Even when the legal basis for the will contest is weak, imposing defense costs on the estate is often an effective way to extort money from the estate.

Only intestate heirs and beneficiaries of a will can challenge the will, since the law no longer allows anyone without a financial stake to challenge the will. (Hence, there will be no more scenarios such as those that took place in the 1930's where thousands of people would claim that they were the long lost relatives of rich decedents.) However, it is possible for someone without legal standing for a will challenge to, nonetheless, sue a tortfeasor for tortious interference of an expectancy if the plaintiff was expecting a gift under the will but the tortfeasor convinced the testator through fraudulent means, such as through undue influence, to reduce or eliminate the gift to the plaintiff.

Sometimes will challenges result from the beneficiary's resentment of dead hand control rather than the size of the gift. For instance, there may be a condition upon a gift that, to receive it, the beneficiary must marry a person of a particular faith within a specified time. Usually, dead hand control clauses are enforced unless they violate public policy; nonetheless, they often invite will challenges.

Sometimes a resentful will challenger wants to embarrass the testator's family by challenging the testator's mental capacity or claiming that his reasoning was clouded by an insane delusion. Because probate records are public, it gives the challenger an opportunity to have many family secrets recorded in public records.

Legal Basis of Will Contests

In a previous era, the Wills Act formalities, as they are sometimes called, had to be complied with exactly for a will to be valid. For instance, most wills were required to be signed at the end of the will and witnessed by 2 disinterested people who also had to sign as witnesses. The purpose of the Will Acts was to ensure that the purported will was not just a rough draft or idle musings, but mostly to prevent fraud. Nowadays, a will proponent can present evidence that the testator intended for the proffered will to be his will even if the will does not comply with the state's Wills Act formalities — named the dispensing power.

Most will contests are based on whether the testator himself lacked capacity or was under undue influence when executing the will. Indeed, at least 1 judge had commented that insanity seems to be the norm for testators, judging by the number of challenges of the testator's mental capacity and psychological health. ^{Lloyd v. Wayne Circuit Judge. 56 Mich. 236, 242, 223 N.W. 28, 30 (1885)}

Wills can also be challenged based on public policy, which is often the basis for invalidating dead hand control clauses.

Preventing Will Contests

If a challenged will is found to be invalid, it would thwart the testator's wishes because an invalid will will not be admitted to probate, and the property will be distributed either under a prior will or under intestacy. Obviously, no one would challenge the validity of the will unless they expected to receive more from the alternative.

To reduce the likelihood of will contests, the 1^st step is to ensure that the will itself conforms to the state's Wills Act. While the modern trend is to overlook mistakes and rigid formality requirements, it would still behoove the testator to eliminate mistakes and to comply with the Wills Act formalities as a way to prevent attacks on the will itself. The major requirements of the Wills Act in most states concerning the will itself or any codicils is that it be signed at the bottom by the testator and by the attesting witnesses and usually requires that they all be present and have actually witnessed the signing. (These are just basics and actual requirements vary according to jurisdiction.) Even in states such as Pennsylvania, which has never required attestation by witnesses, it would still be prudent to have witnesses since it would help to prevent the frustration of the testator's intent.

The 2^nd step is to demonstrate that the testator has the mental capacity to execute the will. There are 4 requirements for mental capacity to execute a will:

1. know what property you have;
2. know who your descendants and relatives are (or to know your bounty, as it is often put);
3. know the disposition of the property;
4. know how everything interrelates.

Hence, the will itself can demonstrate mental capacity by including all major forms of property owned by the testator in the will, and by including all presumptive heirs, even if they are not getting anything, to show that they have not been forgotten. Furthermore, the testator can have disinterested others read the will to see if the disposition of the property makes sense.

Video recording may also serve as effective evidence for the execution of the will, testamentary intent and capacity, will content, and the lack of undue influence or fraud. While video wills are not allowed in most jurisdictions, they can be used as evidence that the Wills Act formalities have been met and that the testator actually was of sound mind. Of course, if testamentary capacity is questionable, then it would be better not to have the will ceremony recorded, as the video recording could evidence the lack of testamentary capacity.

Another method of ensuring the validity of the will is to have it notarized. A self-proved will is a will that is accompanied by a notarized affidavit that is signed by the testator and the witnesses that establishes most of the requirements of the will execution. Its main advantage is that the formality of the process is proven and the witnesses do not have to appear in court.

In Europe, wills can be notarized by public notaries who are public officers of the court and have greater authority than those in the United States. The notaries can not only vouch for testamentary capacity, but they also keep the will so that it cannot easily be changed or revoked without notifying the notary.

Nowadays, many states in the United States allow the testator to deposit the will with the court. The testator usually receives a certificate or other evidence of the deposit, and upon the testator's death, the will is turned over to the designated person or other court that has jurisdiction over the testator at the time of his death. However, strict rules govern such deposits. Most states require that the will be sealed to maintain confidentiality, and stipulate the fee to be paid, who is to be notified, and even how the will container will be opened. The court will also have some specified rules concerning deposited wills.

Explanatory statements may be used to explain the reasoning behind the will. If the reasoning makes sense, then it can present evidence of testamentary capacity and will likely be honored. However, poor reasoning or obvious falsehoods may be evidence of the lack of testamentary capacity, and, hence, will have the opposite effect. Furthermore, if part of the explanation speaks ill of some of the disappointed heirs, it may provoke those people to challenge a will just to defend themselves or they may sue for testamentary libel.

Another effective method to avoid will contests is for the testator to explain his intentions to his heirs apparent so they know what to expect. The testator can also explain the reasons for the disposition of his property and respond to any questions or comments while he is still alive.

Penalty Clauses

A penalty clause (aka no-contest clause, ad terroram clause) is a clause that deprives any beneficiary of their gift under the will if the beneficiary challenges the will.

Penalty clauses have no deterrent value if the challenger of the will is not receiving anything. Indeed, disinherited presumptive heirs would be highly incentivized to challenge the will or prevent the admission of the will to probate, since they would get more under intestacy. Or by extortion, because will challenges can take years to resolve, and, meanwhile, the estate may be prevented from distributing the property to other beneficiaries until the resolution of the challenge. So even if there is little likelihood of successfully challenging the validity of the will, the estate will often settle so that the property can be distributed.

Note, too, that if the will is challenged and found to be invalid, then the penalty clause itself will be invalid, which may allow an intestate heir to inherit in spite of the attempt to disinherit.

Although penalty clauses are usually enforced, they are construed narrowly since such clauses are often used to thwart the detection of fraud, undue influence, or other wrongful conduct.

Indeed, §2-517 and §3-905 of the Uniform Probate Code stipulates that any penalty clause will be unenforceable if there is probable cause for challenging the will.

Inter Vivos Gifts and Trusts, and Joint Accounts or Tenancies

The difficulty of challenging someone who is still alive is amply demonstrated by the everyday occurrence of all people transferring property or money while they are alive without any problem at all. Indeed, people sign contracts everyday, where the law requires a higher mental capacity than for executing a will, and, yet, virtually no contractors are challenged as to capacity.

Hence, a very effective way to avoid will contests is to give the gift while still alive, such as through inter vivos gifts or joint ownership or through the use of living trusts.

A joint ownership with rights of survivorship allows a deceased owner's property interest to be divided among the remaining joint owners. The living account owners simply present the death certificate to the institution holding the account to transfer the dead owner's property interest to the remaining owners. Usually, joint ownership is by spouses.

A living trust (aka inter vivos trust) is a trust that is created while the donor, who is the grantor of the trust, is still alive and where property is held in the name of the trust and managed by the trustee. The inter vivos trust has several advantages over a will:

• because the creation of the trust requires a greater effort by the donor, it establishes capacity;
• courts will be reluctant to undo property transfers that have already occurred, especially if it was long ago;
• the trust has much greater flexibility of distributing the property and lowering estate and inheritance taxes.

However, a trust is also subject to many of the same challenges as a will, including mental capacity and undue influence. However, such attacks will be much more difficult while the grantor is still alive.

A major disadvantage for a challenger to a trust is that the challenge does not prevent the trust from transferring property to the beneficiaries. A challenger to a will can tie up probate property for a considerable time — sometimes for years — and prevent any of the beneficiaries from receiving anything until the contest is decided. Hence, many will contests are settled so that the beneficiaries can receive their gift. The property and income of a trust is not tied up since the trust has legal title to the property and can continue to manage the property until a court says otherwise. So, the challenger cannot extort a settlement from a trust.

Ante-Mortem Probate and Forensic Assessment of the Testator

Other, less conventional, methods can reduce the likelihood of will contests because they are implemented while the testator is still alive: ante-mortem probate and forensic assessment by a psychologist.

An ante-mortem probate occurs when a will is submitted to probate court by the testator himself. (Sometimes, this is also called living probate, but this term is often used when the testator is suddenly incapacitated and can no longer handle his financial affairs, so the living probate is used to transfer assets and to provide a guardian or conservator, if necessary. This discussion is limited to when the testator has full capacity and is simply using the living probate to reduce the likelihood of will contests.)

The testator can have the will validated by a probate court and can respond to any challenges to the will. All parties to the will and intestate heirs are notified of the probate, so that they can institute adversarial proceedings, if so desired.

The main advantages of ante-mortem probate is that the testator is still alive to resolve any disputes or ambiguities, clarify any provisions, correct any mistakes, explain dead hand control clauses or omissions, and to prove testamentary capacity and lack of undue influence, either by people or by insane ideas. Note that ante-mortem probate is better — and more expensive — than simply depositing the will with the court (as noted above), since it is an actual court proceeding conducted with the testator present.

Moreover, all the witnesses will still be alive with stronger memories of recent events. If a will is probated post-mortem, then many potential witnesses may not be alive, and even if they are, their memories will have faded, especially if the testator lived long after executing the will.

Michigan passed the 1^st ante-mortem probate statutes in 1883, but was declared unconstitutional by the Michigan Supreme Court shortly after its passage because, among other things, the statute did not require proper notices to all affected parties and because the testator was free to revoke or amend the will afterward. Presently, only Arkansas, North Dakota, and Ohio have statutes for ante-mortem probate, and even in those states, it is rarely used.

Another method to reduce the likelihood of will contests is a forensic assessment of the testator by a psychologist or psychiatrist shortly after executing the will. The forensic assessment could provide ample evidence of mental capacity, freedom from undue influences and from insane delusions, which are the most common types of contests. Although forensic assessment is not as effective as ante-mortem probate in preventing post-mortem will contests, it is cheaper and quicker.