Will Contests

There are many avenues that one can take to contest a will and for that reason there are many places the bar examiners can go to test the topic of will contests. Grounds for challenging a will include a claim that the will is defective in its execution and a claim that although the will was validly executed, it has been revoked. In addition, lack of testamentary capacity, lack of testamentary intent, undue influence, fraud, and mistake, are all grounds for contesting a will. This post will focus specifically on four of these grounds: lack of capacity, undue influence, fraud, and mistake. 

An initial issue for any will contest is a procedural one. Generally, a will contest must be filed within 6 months after the will is admitted to probate and only those whose interests would be adversely affected by the admission of the will have standing to contest it. The burden of proof is on the person contesting the will.

One ground for contesting a will is a claim that the testator lacked capacity at the time that the will was executed. A testator will lack capacity if the testator is under the age of 18 at the time the will was executed (in most states). In addition, a testator at the time of execution must have the capacity to understand the nature of the act of execution, the nature and extent of the property left in the will, and the natural objects of the testator's bounty (the closest surviving relatives). It's not enough to prove that the testator was old at the time the will was executed or that the testator was ill or that the testator had a struggling memory. It's also not enough to show that the testator has addiction issues with drugs, alcohol, etc. None of that will satisfy the standard required for lack of testamentary capacity. An adjudication of insanity, on the other hand, is evidence of lack of testamentary capacity. But that, too, is inconclusive. 

Another ground for contesting a will is by establishing undue influence. To establish undue influence, the will contestant must establish that influence was exerted, the effect of the influence was to overpower the mind and free will of the testator, and the resulting disposition in the testator's will would not have been executed but for the influence. Although the above elements must be proved (circumstantial evidence is insufficient) under certain limited circumstances a presumption of undue influence is appropriate. Such a presumption arises if there was a confidential relationship between the testator and a beneficiary and the beneficiary was active in procuring, drafting, or executing the will. If the presumption applies, then the burden will shift to the proponent of the will to rebut the presumption. 

Fraud is another ground for contesting a will. For this contest to be successful, the testator must have been willfully deceived as to the character or content of the will or as to extrinsic facts that would induce a particular disposition in the will. 

Lastly, mistake is a ground for contesting a will, and there are a few different types of mistakes to consider. Mistake in execution requires the contestant prove that the testator did not know that the instrument he/she was signing was a will. Extrinsic evidence is permissible for this purpose. Mistake in inducement, on the other hand, is not a mistake as to the nature of the instrument itself. Rather, it's a mistake involving the reasons a testator made the will. Although in certain circumstances a contestant might successfully contest a will based on mistake in inducement, it is not as strong of a case as mistake in execution. 

Ambiguity also falls under the category of mistake. There are two types of ambiguity to keep in mind. Latent ambiguity arises if a will's language is clear on its face but results in a misdescription as applied, whereas a patent ambiguity exist if the uncertainty appears on the face of the will itself. Importantly, extrinsic evidence is admissible to cure latent ambiguities but is less like to be admissible to cure patent ambiguities. A modern view has done away with this distinction and allows extrinsic evidence to cure the ambiguity in either case. 

The testator may want to control whether anyone contests the will in any manner discussed above. That's allowable through a no-contest clause. A no-contest clause is a clause in a will providing that any beneficiary who contests the will will forfeit any interest left to the beneficiary under the will. Such a clause is valid and enforceable unless the beneficiary had probable cause for contesting the will. In some states, a no-contest clause is given full effect even if the beneficiary had probable cause for contesting the will, but under the UPC (which is applied on the UBE) even if a no-contest clause in in place, the beneficiary can contest the will if there is probable cause to do so.