Probate Fights! Reason Three

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Typically there are three general reasons why families fight during the probate process. Here is reason 3.



Today, I’d like to talk about the third area in which people start fighting in the probate process. The first area that I discussed was property. Heirs will fight over who gets the stuff and heirlooms the decedent left behind. The second area has to do with the personal representative or the executor. And the third area has to do with contesting a will. Now typically there are two ways to contest the will.

The first way to contest a will is to challenge the formalities of the will. Whether the signing requirements were met or whether the decedent had the testamentary capacity (was in his right mind). In these types of cases, we look to see if the person knew what was going on and were there proper witnesses. Whatever’s required under the law to meet the requirements of a valid will typically don’t see this type of challenge too often.

Typically, what we see and what triggers a will contest is when a will has been changed shortly before the person passes away. That usually gets the heirs to question what was going on around the decedent’s time of death.  And so at this point in time, when that happens, it triggers a concern in folks as to why did this happen, and how did this happen, and why did this happen so close to mom or dad’s death.

And so the questions that need to be asked, going back to the formalities is number one, and these are sort of intertwined. Did mom, dad, grandma and grandpa have the mental capacity or the testamentary capacity at that point in time to enter the will to change the will? Did they know what they were doing? Did they understand what they were doing? Was it of free will that they were doing that? So that’s the first area.

The second area of inquiry is intertwined and that has to do with this concept of undue influence. And the concept of undue influence looks at this says look, uh, there was a person around who was sort of in a fiduciary or close relationship. This person could be a kid and this person had a whammy or put a whammy over their parent. And because of the close relationship, that person unduly influenced the decedent.

And it might be starting to get mom or dad or grandma and grandpa to start feeling sorry that none of the other kids or grandkids are helping take care of them.

And look at Susie. Susie is doing the right thing by being there and taking me to the doctor and doing so-and-so. So some of the things that we look at to contest a will are: how close to the time of death was the will changed? The closer – the more suspect. Who found the lawyer to change the will? Was it the decedent or the person who will benefit from the change?. How did the decedent get to the lawyer’s office? Did the person who will benefit from the change, have a copy of the will before the decedent passed away? Did they know about the terms of the will? What was the physical and mental state of the person who changed the will? Were they just on the borderline of having a mental capacity? Was the decedent frail, weak, scared?

If they went on line and prepared a will, we would want to know the following: Who set up the account? Who logged into the account? Who typed in the information? Who paid for the will?

You see if grandma or grandpa or mom and dad want to go in and change their will, they need to really do that on their own volition. They need to find the lawyer or go back to the lawyer who initially prepared the will. They can have somebody drive them, but that person cannot go in the room with the lawyer. The person needs to sit with the lawyer alone. Explain to the lawyer that these are their wishes and the reason why the lawyer is going to ask them questions to determine if they understand the nature of their property and why they’re doing these things.

Trying to determine if a loved one was unduly influenced before their passing can take a lot of work and be quite expensive, however, if Susie was instrumental in getting this will to change, she should not receive the benefit of the change in the terms of the will.