Challenge a will at your own risk

By Attorney Bonnie Bowles, Denver Estate Planning Examiner

When it comes to executing a will, many people worry unnecessarily that their will might be contested.

In fact, wills are seldom contested and even when they are, challenges rarely succeed. And before most challenges are filed, the beneficiary has to think long and hard about whether bringing a challenge is worth it—because if a will is properly drafted it includes a provision that a beneficiary who challenges a will and loses forfeits everything they stand to inherit.

Brooke Astor’s only son learned this the hard way. Anthony Marshall stood to inherit $70 million when it was all said and done. But that wasn’t enough for him. He wanted full control over who inherited all this after he passed, rather than have it pass to charity as Brooke Astor’s will provided. He challenged and lost—and walked away with a mere $3 million and a criminal prosecution to boot.

When a challenge is filed, one of the most difficult claims is that the decedent (the person who made the will) was unduly influenced, or pressured, by someone with a vested interest in the contents of the will.

Simply put, undue influence is concerned with how dependent the decedent was on another person at the time of the execution of the will. Did the person take advantage of that dependency?

To test for undue influence, courts generally look for evidence of control sufficient to have forced the decedent to do something extraordinary, evidence of fraud, threats of misrepresentations, and physical or moral coercion.

The burden of proof is ordinarily on the person challenging the will, as courts presume that properly executed wills are valid. However, if one beneficiary benefits greatly from the will and presses the court to approve it, the burden of proof may switch, forcing the person to prove that undue influence did not exist.

Most states require a high burden of proof in these cases and, because undue influence is almost always done in private, it can be difficult to show acts that can produce a successful challenge. Moreover, it is generally accepted that family, colleagues and neighbors regularly influence people, and that such influence is not necessarily inordinate or “undue.”

Challengers do, however, have one advantage — they can generally supply circumstantial evidence to support their cases. Some factors courts may consider are:

  • Fraud.
  • A hasty execution of the will.
  • Concealment of a new will.
  • Active involvement of a beneficiary in securing a new will, such as making appointments, preparing the forms, and answering questions.
  • Inconsistency between the new will and previous estate plans.
  • Provisions in the will that don’t match family relationships and attitudes of the decedent.
  • The decedent’s susceptibility to undue influence.
  • The weakened condition of the decedent.
  • A “confidential relationship” such as a power of attorney, close family connection or fiduciary relationship.
  • The fact the decedent was dependent on and placed trust in a beneficiary.
  • A beneficiary who benefits substantially from the will.

One, or even several, of these elements won’t automatically invalidate a will, but the cumulative effect may provide enough evidence for a challenge.

Note from the author: Disgruntled beneficiaries don’t have to ruin it for everyone else. If you are anticipating a will content, consider seeking guidance on the best decisions you can make in your situation. For the first two people who read and mention this article, we’ve reserved space on our calendars this month for a complimentary Family Wealth Planning Session (a $750 value) to spend up to two full hours gaining an understanding of the estate planning process. Call 720-266-8190 today and mention this article.

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