Pamela Yip, Personal Finance reporter for the Dallas Morning News, remains one of my favorite reporters. I feel a kinship to her style of reporting which is accessible, practical, and relevant to everyday life. Last week she wrote an excellent article about how difficult it is to contest a will. Here is what you need to know.
REMEMBER THAT THIS IS YOUR FAMILY
You cannot contest a will until the person is dead and the will is offered for probate.
Think twice before you leave uneven legacies to your siblings or children. Even when some are better off than others, everyone equates the legacy with more than money and ‘stuff’. If some get less than others, the ones who get less will will feel that you regard them as “less.”
Think carefully before contesting a will. It will impact your relationship with your family forever.
SECOND FAMILY CHALLENGES
Wills are often challenged when there is a second family involved. If you cut a child out of your will there will probably be a challenge. When you write your will do your best to prevent challenges. There are two types of second family scenarios that can cause endless grief.
In one scenario, a first marriage produces children, the father divorces wife #1 and marries wife #2. When the father dies and wife #2 receives more than the children think is fair, there is likely to be a challenge. The second wife is not the mother of the children from the first marriage. It is best to not cut children out of a will. If you do, you can be pretty sure it will be contested.
In the second scenario, the person writing the will is divorced and happily remarried. If a new will is not written naming the new wife as heir, the first spouse may inherit all while the current spouse is disinherited. Good luck contesting the will. In the cases I know, the first spouse kept it all. If you love your spouse, make sure your will is rewritten when you are remarried. Some people just can’t make themselves face end-of-life issues. The results can be awful for a survivor.
HOW TO CONTEST A WILL
1. Show the person lacks “testamentary capacity.” This means the person executing the will is able to make a reasonable judgement about the following:
- He/she is making a will,
- The effect of making the will
- The general nature of his/her assets
- Knowledge of next of kin
The person making the will must understand what is owned, who is in her immediate family and how her wills impact family members.
2. Show that technical details were not followed or that the will was forged.
- Was the will signed before two witnesses?
- Was the signer of the will age 18 or older?
- Were the witnesses at least 14 years old?
3. Show the person drew up the will under “undue influence.” You have to prove the undue influence, which can be quite difficult.
4. Challenge within the right time frame. It can be challenged before or after it goes to probate. Before probate, the executor must prove the person is of sound mind, above the age of 18, and the two witnesses were above age 14. Once the will is admitted to probate, the challenger must prove the person was incompetent or not the right age. If you want to prove that the writer of the will was incompetent, challenge the will before it goes to probate. This puts the burden of proof on the executor.
You only have two years to file a challenge once it is probated. In other words, if you are going to challenge a will, do it right away.
Sometimes challenges arise about charitable bequests. Interestingly, it is most common for distant relatives rather than a child to contest the will. Relatives may be disappointed when assets they hoped to inherit are left to charity believe they are ‘owed’ more.
There is a huge amount of emotion tied up in settling an estate. Before challenging a will ask yourself if the will reflects deceased’s wishes. If it does, do yourself and everyone else a favor and leave it alone.
Ask yourself if the money is really worth destroying your family? If the answer is yes, it probably wasn’t a very good family.