In the intricate world of estate planning, ensuring the smooth realization of a person’s final wishes is paramount. But even the most carefully-drafted wills may face legal challenges. A Will contest is a formal challenge to a Will. It’s a messy, ugly process that can drain an estate (and the Beneficiaries) of the legacy.
Let’s discuss the setting where Will contests take place, reasons behind them, and some of the proactive measures to safeguard a legacy.
Probate Generally
Before exploring what a Will contest entails, a basic understanding of probate is necessary.
Probate is the legal validation of a Testator’s (deceased individual’s) Will and transfer of his or her property to the Beneficiaries. During this process, the probate court examines the authenticity of the Will and ensures compliance with the state’s testamentary formalities. This includes the Testator’s signature, witness attestation and signatures, and an affidavit of witnesses.
After the court admits the Will to probate, the Executor then carries out the process of dealing with debts and distributing assets. There are administrative components to this, like publishing notice to creditors and handling creditors claims. The Executor may also need to handle a claim from TennCare for reimbursement if the Decedent was receiving long-term care benefits from the state.
Once the Executor handles all claims against the Estate, he or she then distributes assets to the Beneficiaries as the Will directs. Upon distributing all assets, the Executor petitions the court to close the Estate. Once the court enters an order for such, the matter is complete.
Will Contests in Probate
Most of the time, Executors handle their duties properly. But sometimes there is cause to believe the Will is invalid. Or there is a disgruntled party who simply doesn’t like what’s in the Will.
Will contests can have a basis in a variety of claims. Or they can be a frivolous challenge to what the Testator’s wishes were.
A Will contest is a lawsuit that takes place during probate. The court pauses distribution of assets until it resolves the matter. Because of the complexity of a Will contest, this can often cause a probate to take years.
Some common reasons for Will contests include:
- Fraud. There are generally two types of fraud for purposes of a Will contest: fraud in the inducement, and fraud in the execution. Fraud in the inducement is where someone misrepresents facts to the Testator, and the misrepresentation affects the Will’s disposition. Fraud in the execution is when someone tricks the Testator into signing the Will without truly understanding what the document says. He or she may not even know that the document is a Will.
- Duress: There may be a Will contest if it’s believed the Testator signed the will under compulsion. This could involve threats, manipulation, or pressure from others (i.e., an offer one can’t refuse).
- Undue Influence: Related to duress, undue influence occurs when an individual has a confidential relationship with the Testator and uses that relationship to have the testator change his or her Will. The changes generally do not reflect his or her true wishes. This can result in an unusual disposition of assets in favor of the person who had the confidential relationship. Such a situation often involves caregivers who are unrelated to the family.
- Lack of Testamentary Capacity: For a Will to be valid, the Testator must have legal capacity to make the Will. The Testator must understand the nature of their assets, who their b=Beneficiaries are, how the Will distributes their assets, and the consequences of such decisions. If there is reason to believe the Testator was not of sound mind, this could lead to a Will contest.
Who Can Contest a Will?
A fundamental component of legal proceedings in the United States is the doctrine of standing. A party bringing a lawsuit must have some stake in the outcome. A random person off the street cannot contest someone else’s Will.
Tennessee law recognizes the right of certain parties to bring a Will contest. The beneficiaries named in a will can contest it. The Beneficiaries named in a Will have standing specifically because they are named.
On the other hand, those who are the Heirs-at-Law (Beneficiaries when someone dies without a Will) may also contest a Will. They may do so because, if they prevail, they receive assets by the laws of intestate succession.
Some third parties, such as the State of Tennessee, may also have standing for a Will contest. There must be a possibility that some interest in the decedent’s Estate may pass to the state.
How to Prevent a Will Contest
Professional Guidance and Drafting
Working with an attorney on a Will is one way to reduce the risk of a Will contest. If there is any sort of fraud, undue influence, duress, or lack of capacity, the attorney will likely be able to see what’s going on. He or she can then stop the process before the documents have signatures.
Professional drafting provides some assurance that there were no red flags noticed before signing the documents.
No-Contest Clause
Also known as an in terrorem clause, a no-contest clause deters frivolous lawsuits. This clause directs that if someone brings a Will contest without probable cause, the Will disinherits that person.
Someone may contest the Will based on reasonable grounds that there was fraud, duress, undue influence, or a lack of capacity. In such a case, the courts generally would not enforce a no-contest provision because he challenge was in good faith and not for frivolous purposes. The point of a no-contest clause is to prevent bad-faith challenges, not legitimate ones.
Revocable Trust
A Trust provides a great deal of privacy and efficiency. Generally, only named Beneficiaries will know of the Trust’s disposition. Other people who otherwise do not receive anything from the Trust will have a hard time contesting its provisions since there is not a public process to access.
A Trust can have its own no-contest clause for Beneficiaries who want to challenge it. The wording in a Will or in a Trust may even be identical. The courts will enforce the provision against frivolous claimants.
Final Thoughts on Will Contests
Ultimately, nothing can 100% protect against a Will contest. There still may be someone who decides to bring a frivolous lawsuit in spite of all the preparation. But by preparing for such a possibility, there is a much higher probability that the Will contest is not going to succeed.
Will contest are rare. And it’s even rarer that they are successful. But they sometimes happen, so it’s important to handle this subject carefully.
Reach out to Connell Law, PLLC today to request a consultation if you believe a Will contest is likely for a recently deceased family member’s Will.