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By: Natalie T. Lorenz

The emotions of will and trust beneficiaries tend to run high after the passing of their loved one – but never as high as when they believe their loved one treated them unfairly.  Beneficiaries feel slighted when their loved ones decrease the size of their inheritance, give siblings or other relatives larger shares, or even disinherit them completely.

Beneficiaries must understand the basics of will and trust contests before they can make an informed decision regarding whether to file suit to obtain the inheritance they believe is theirs.

First, beneficiaries need to know that it is extremely difficult to overturn the terms of a will or trust as written at the time of their loved one’s death.  There are two basic routes for doing so: claims for undue influence, and claims for lack of capacity.

Claims for lack of capacity require the plaintiff to prove that their loved one did not have the mental capacity to make a will or trust at the time their loved one did so.  The problem with choosing this route is that the bar for being mentally capable to make a will or trust is extremely low.  The grantor is required only to (1) know who their natural beneficiaries are (e.g., children), (2) have a general idea of what their assets include, (3) be able to form a plan in their mind for how to distribute those assets (which plan does not necessarily have to include their natural beneficiaries), and (4) be aware that they are making a will or trust (and not a grocery list).  That’s it.  Even if the grantor is extremely old, frail, and perhaps not as sharp as they once were, if they can pass the above four-part test, they are capable of making a will or trust.

Claims for undue influence require the plaintiff to prove that their loved one was hoodwinked by someone.  The plaintiff must show that whoever that person is, they influenced the grantor to disregard what the grantor wanted to do, and instead use an estate plan set forth by the influencing person.  Again, this is difficult to prove because the influence at issue must be “undue” in order to be actionable.  No one would doubt that children influence their parents’ estate planning decisions all the time – for example, a parent might be more apt to leave a greater share to one child over another because the first child visits more often and helps take care of the parent.  Influence such as that, alone, is not enough – the influence must be “undue.”  The influencer must essentially force the grantor to implement an estate plan inconsistent with the grantor’s own wishes, substituting the influencer’s will for the grantor’s.

Some things to consider when determining whether to move forward with a will or trust contest include they type of relationship the beneficiary had with the grantor, whether there are any logical reasons why the grantor may have treated the beneficiary differently than others on similar footing, whether anyone isolated the grantor from being contacted by the beneficiary, whether anyone suggested changes to the grantor’s estate plan prior to the grantor making the suggested changes, and whether the grantor experienced mental difficulties that could have made the grantor unable to meet the four-part test above.

If you are unsure whether you may wish to file a will or trust contest, contact an attorney as soon as possible.  If litigation is warranted in your case, your time to file a will or trust contest will be extremely limited, and your attorney will need to act quickly to protect your rights.

The attorneys at Mathis, Marifian & Richter are experienced in litigating will and trust contests, and are happy to meet with anyone considering filing a lawsuit, or persons who must defend these lawsuits.  Contact us directly to speak with someone who can answer your questions.

Professional Services Disclaimer: Please note that the information presented here is as an educational service, and while it contains information about legal issues, it is not legal advice. No warranty is made regarding the applicability of the information presented to a particular client situation, and the information set forth is not a substitute for original legal research, analysis and drafting for a particular client situation.