Contesting a Will

by Nicholas Walsh, PA

A will contest - a court action to disqualify a will - is a little like a murder trial: the most important witness is dead. Because the author of a will is not around to defend it, the law has a strong bias in favor of giving effect to a will. A person who wants to overturn a will faces a major challenge.

There are two primary grounds for challenging a will: lack of “testamentary capacity” (the mental ability to make a will) and “undue influence,” where a person was forced to make or change their will.

Let’s take testamentary capacity first. A person who is too far gone to, say, enter into a contract to buy a car may still be able to make a will. An insane person can make a will, as can a drunk or someone demented with Alzheimer’s or other disease, if the person can understand in a general way what assets he or she owns, to whom he is giving the estate, and who is excluded. Conversely, a person can’t make a will if he has no idea how much land he owns, or how much money is in the bank, how many kids he has or if he’s still married.

In law school I learned the phrase “lucid interval.” Many very old people, and some people with mental illness, have good days and bad days. Many are better in the morning than later in the day. A person can be seriously mentally impaired, yet rally and keep his reasoning intact for the important task of understanding and signing a will – it happens all the time. Many experienced lawyers have had the experience of overseeing an old person’s execution of a will, with absolute confidence in the client’s demonstrated ability to understand the will, only to hear later from irate family members who report that the elderly person suffered from severe and seemingly unremitting dementia and couldn’t possibly have made a valid will. The elderly person made the will during a “lucid interval.”

Here’s a tip: An old person making a will he thinks might be challenged ought to see his personal doctor for a check-up, including what’s known as a “mini mental exam,” just before or after executing the will. Tell the doc that’s one reason for the visit. A solid check-up, with a careful note in the chart, will go a long way toward preventing anyone from challenging the will.

I’ll turn to undue influence. Anyone making a will is influenced. Influence will void a will when the influence is so overwhelming as to destroy the person’s ability to decide how to leave his or her estate. Kindness, bringing pies, arguing that leaving the camp to sister will result in it being sold off, all are fair game, so long as the person making the will still has free choice.

Lawyers who practice in this area look out for undue influence. Things we watch for are the existence of a close, confiding relationship between the testator and the “undue influencer,” domineering behavior, a will disposing of property in an illogical manner, or a will which departs from the previous will or previous declarations of intent.

We also look for evidence that the elderly person may be unusually susceptible to influence, perhaps because of illness (especially mental illness) or loneliness, and we look for circumstantial evidence of an effort to gain undue influence, such as persuading the elderly person to keep from others the fact that he changed his will. Unusual circumstances surrounding the execution of the will are another giveaway, such as a will which was not executed under the supervision of a lawyer, or the suspected influencer insisting on remaining in the room while the testator is being counseled. A big red flag is when the elderly person used the same lawyer for many years, including for estate planning, but is taken to a new lawyer by a person who may be looking for special treatment in the will.

This is an interesting practice area, full of old law, and I enjoy these cases. They are fraught with family emotion, however, in some ways more even than divorces.

Stay out of trouble.

Nicholas Walsh is an attorney practicing in Portland. He may be reached at (207) 772-2191, or at nwalsh@gwi.net.