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Wills, trusts and estates

Part of the common law series

Wills

Wills (legal history) Joint wills and mutual wills Will contract · Codicil Holographic will · Oral will

Sections Attestation clause Residuary clause Incorporation by reference

Contest Testamentary capacity Undue influence Insane delusion · Fraud

Property disposition Lapse and anti-lapse Ademption · Abatement Acts of independent significance Elective share Pretermitted heir

Trusts

Express · Constructive Resulting

Common types Bare · Discretionary Accumulation and Maintenance Interest in possession Charitable · Purpose · Incentive

Other types Protective · Spendthrift Life insurance · Remainder Life interest Reversionary interest Honorary · Asset-protection Special needs (Supplemental Needs)

Governing doctrines Pour-over will Cy-près doctrine

Estate administration

Intestacy · Testator · Probate Power of appointment Simultaneous death · Slayer rule Disclaimer of interest

Related topics

Living will (advance directives) Totten trust

Other common law areas

Contract · Tort · Property Criminal law · Evidence

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A will contest, in the law of property, is a formal objection raised against the validity of a will, based on the contention that the will does not reflect the actual intent of the testator (the party who made the will). Will contests generally focus on the assertion that the testator lacked testamentary capacity, was operating under an insane delusion, or was subject to undue influence or fraud. A will may be challenged in its entirety, or only in part.

In many states, a legal presumption of undue influence arises where a beneficiary under the will stands in a confidential relationship with the testator. For example, where a testator leaves property to the attorney who drew up the will.

A will may include an in terrorem clause, with language along the lines of "any person who contests this will shall forfeit his legacy", which operates to disinherit any person who challenges the validity of the will. However, since this clause is within the will itself, a successful challenge to the will renders the clause meaningless. Many states consider such clauses void as a matter of public policy.

Standing to contest a will

Typically, standing to contest the validity of a will is limited to two classes of persons:

1. Those who are named on the face of the will;
2. Those who would inherit from the testator if the will was invalid

The following example is instructive: Monica makes a will leaving $5,000 each to her husband, Chandler, her brother, Ross, her neighbor, Joey, and her best friend, Rachel. Chandler tells Monica that he will divorce her if she does not disown Ross, which would humiliate her; later, Ross tells Monica (untruthfully) that Chandler is having an affair with Phoebe, which Monica believes. Distraught, Monica rewrites her will, disowning both Chandler and Ross. The attorney who drafts the will accidentally writes the gift to Rachel as $500 instead of $5,000; and also accidentally leaves Joey out entirely.

Under these facts, Chandler can contest the will as the product of fraud in the inducement, because if the will is invalid, he will inherit Monica's property, as the surviving spouse. Ross can contest the will as the product of Chandler’s undue influence, because Ross will inherit Monica's property if Chandler’s behavior disqualifies Chandler from inheriting (note, however, that many jurisdictions do not consider a threat of divorce to be undue influence). Rachel has standing to contest the will, because she is named in the document – but she will not be permitted to submit any evidence as to the mistake because it is not an ambiguous term. Instead, she will have to sue Monica's lawyer for legal malpractice to recover the difference. Finally, Joey is neither someone who stands to inherit from Monica, nor named in the will, and therefore is barred from contesting the will altogether.

Grounds for contesting a Will

Please help improve this section by expanding it. Further information might be found on the talk page or at requests for expansion. (September 2008)

The most common grounds, or reasons, for contesting a Will are:

• Lack of disposing mind and memory
• Duress
• Election against the Will by a widowed spouse or orphaned children
• Fraud
• Insane delusion
• Testamentary capacity
• Undue influence

Consequences

Please help improve this section by expanding it. Further information might be found on the talk page or at requests for expansion. (September 2008)

Depending on the grounds, the result may be

1. Invalidity of the entire Last Will and Testament, resulting in an intestacy.
2. Invalidity of a clause or gift, requiring the court to decide which charity receives the charitable bequest, using the equitable doctrine of cy pres
3. Dimunition of certain gifts, and increase of other gifts to the widowed spouse or orphaned children, who would now get their elective share.

See also

• Intestacy
• Per minas

References

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Wikipedia content modification information:

• This page was last modified on 9 September 2008, at 15:19.

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