Challenging a will not an easy task

Challenging a will not an easy task

December 31, 2007

Beneficiaries and would-be beneficiaries are often unhappy about the contents of a will, but launching a challenge isn’t an easy thing to do, says Windsor wills and estates lawyer Laura Stairs.

“It’s very difficult, but something that comes up all the time,” says Stairs, associate with Shibley Righton LLP.

Stairs points to a British poll that shows millions would challenge a will if they don’t like its contents. Although the Independent reports that many would go to court over how the assets are divided, Stairs has found that money is not necessarily the main issue.

“In my experience, the amount is often irrelevant. It has more to do with the emotions going on behind the scenes — the beneficiaries’ feelings about how the rest of the estate was divided and how the estate trustee is handling everything. It’s usually more of a family conflict than the amount of the inheritance,” she tells AdvocateDaily.com.

When finances do come into play, Stairs says it’s often because the distribution is uneven.

There are a few options for those who want to challenge the will, she explains. They can claim the testator was incapable at the time of making the will, that they were unduly influenced, or that fraud was somehow involved. They could also claim the signature on the will doesn’t belong to the testator.

“But the court gives much deference to a testator’s wishes,” Stairs says. “It’s always going to be very challenging to make any kind of argument to say there are issues with the will.”

She says substantial evidence is required to prove the testator did not know what they were doing and did not have capacity when completing the will. However, Stairs says any lawyer involved in drafting a will does conduct their own capacity assessments to ensure the client is aware of what they’re doing.

Any indication that an uneven amount will be left to the beneficiaries, such as the children, can be a red flag for a lawyer that a future challenge is possible, Stairs says.

“If a challenge looks possible, you should take extra precaution to make sure you understand the testator’s capacity, that you write notes about the meeting, and that you make clear to this individual that challenges could come up,” she says.

In some situations, Stairs may encourage her clients to take precautions such as leaving a note in the will confirming the uneven distribution.

Undue influence is another ground for having the will voided, she says. A typical situation might involve a beneficiary who serves as an elderly parent’s caregiver and takes the parent to the appointment to make the will, and then receives more than the other siblings named in the document.

“We have a private conversation with the testator without that other person present to confirm their instructions and wishes,” Stairs says.

Fraud is another ground to challenge a will, although Stairs says that doesn’t come up very often.

She says frustrated family members sometimes focus their attention on the estate trustee and may make a claim against that person. Allegations might include that the trustee took something they weren’t supposed to, has done something inappropriate, or divided the assets incorrectly.

“These situations can be highly emotional and stressful,” Stairs says. “To go through the legal process in these matters can be overwhelming and exhausting for all involved.”