I have practiced law in three states (California, New Jersey and Missouri) and in each state I have practiced extensively in the area of estate litigation. One of the most common forms of litigation involving an estate is the will contest.
Let’s say Mom passes away and you are one of her grown children. Your brother, Biff, has always been a liar and a cheat. Before your Mom passed away, she assured you that she left everything equally to you and Biff and that you were the executor. However, you live out of state and Biff, who’s never been very successful, has always lived with Mom, including the last year or so of her life as she struggled with the Alzheimer’s Disease which would eventually take her life.
Now, Mom has passed away and Biff produces a will from Mom which says everything goes to Biff and that he is the executor of the estate. Something is not right.
Biff has filed the will in court and has opened a probate estate.
What do you do?
You can challenge the validity of the will.
How do you do that?
There are several ways and the best method depends on the facts of your particular case, but here are the most common ways.
#1 THE WILL WAS NOT PROPERLY SIGNED OR WITNESSED. In Missouri, a will must be signed in front of two disinterested witnesses. If Mom couldn’t have signed on the date in question (she was in the hospital, etc.) or only one person witnessed the will or, sometimes, if the witnesses are not disinterested, i.e. Biff is one of the witnesses and everything goes to him – he is not disinterested.
#2 THE SIGNER DID NOT HAVE TESTAMENTARY CAPACITY. Did the Mom know what the nature and value of her assets were, who should logically inherit them and the legal effect of signing a will? If not, she did not have testamentary capacity and the will can be invalidated.
#3 THE WILL WAS OBTAINED BY UNDUE INFLUENCE. Did Biff unduly influence Mom to sign the will? Did he exert pressure on her, verbally abuse her and/or nag her about the will? Did he pay for the will, was he in the room when it was signed? Undue influence is not an easy thing to proof and generally you are going to need several examples of conduct and behavior that together form a picture that Mom was unduly influenced by Mom to sign the will.
#4 WAS THE WILL PROCURED BY FRAUD? Did Biff present the will as a deed to Mom and she signed it believing it was a deed? Were the witnesses actually present? I was counsel on a case in California where the brother fraudulently told Dad that the amendment to his will was actually an additional copy of the original will, while he was in intensive care at the hospital. We were able to win that case by proving Dad’s condition on the day in question, the arrangement of the signing by brother and the fact that the witnesses he stated were present were actually unaware of the signing and at home at the time it was signed.
Will contests can be a very emotionally charged form of litigation. You need an attorney who knows not only the law of this brand of litigation but how to keep emotion out of the picture to get the best result possible.
