Sections
57-398: Contest Property disposition Common types Other types Governing doctrines In common-law jurisdictions , administration of an estate on death arises if the deceased is legally intestate , meaning they did not leave a will, or some assets are not disposed of by their will. Where a person dies leaving a will appointing an executor , and that executor validly disposes of
114-481: A certain number of persons, or witnessed by disinterested parties who are not relatives, inherit nothing in the will, and are not nominated as an executor. Additionally, the testator and witnesses must generally sign the will in each other's sight and physical presence. For example, in Utah , a will must be "signed by the testator or in the testator's name by some other individual in the testator's conscious presence and by
171-446: A conservative estimate". Costs can increase even more if a will contest actually goes to trial, and the overall value of an estate can determine if a will contest is worth the expense. In some cases, the threat of a will contest is intended to both pressure the estate into avoiding the expense of a trial and forcing an out-of-court settlement more favorable to disgruntled heirs. However, those who make frivolous or groundless objections to
228-417: A form of mental illness or disease, undergoes mental health treatment after repeated suicide attempts, or exhibits eccentric behavior, does not mean the person automatically lacks the requisite mental capacity to make a will. Undue influence typically involves the accusation that a trusted friend, relative, or caregiver actively procured a new will that reflects that person's own desires rather than those of
285-498: A minimum of two administrators. On some estates, even under an intestate, it is not clear who are the next-of-kin, and probate research may be required to find the entitled beneficiaries. An administrator (sometimes known as the administratrix, if female) acts as the personal representative of the deceased in relation to land and other property in the UK. Consequently, when the estate under administration consists wholly or mainly of land,
342-474: A parent's will, accuses a sibling of doctoring the document". Notable cases of forged wills include the " Mormon will " allegedly written by reclusive business tycoon Howard Hughes (1905-1976), and the Howland will forgery trial (1868) in which sophisticated mathematical analysis showed that the signature on a will was most likely forged. British physician Harold Shipman killed numerous elderly patients and
399-414: A particular case. However, attorneys are often held to a higher standard and are suspect if they assist in drafting a will that names them as a beneficiary. In many jurisdictions, a legal presumption of undue influence arises when there is a finding of a confidential (or fiduciary) relationship, the active procurement of the will by the beneficiary and a substantial benefit to that beneficiary, such as if
456-421: A person's free will and judgement is supplanted by that of another. It is a legal term and the strict definition varies by jurisdiction. Generally speaking, it is a means by which a person gains control over their victims' decision making through manipulation tactics and unfair pressure, typically for financial gain. Historically, UI has been poorly understood, even in some legal circles. Undue influence
513-571: A professor of gerontology with expertise in elder abuse. The resulting product is referred to as the California Undue Influence Screening Tool (CUIST). The tool can be used to help identify instances of UI in all fifty states. The study revealed similarities in persons who were particularly susceptible to unduly influence such as: Undue influence has been studied in the field of social psychology . The American Bar Association Commission on Law and Aging and
570-413: A strong obligation to uphold the final wishes of a testator, and, without compelling evidence to the contrary, "the law presumes that a will is valid and accurately reflects the wishes of the person who wrote it". A will may include an in terrorem clause, with language along the lines of "any person who contests this will shall forfeit his legacy", which operates to disinherit any person who challenges
627-425: A study to develop a tool to assist Adult Protective Services , legal professionals, and health practitioners in identifying potential instances of UI. The experts included: (1) a licensed psychologist who specializes in forensic neuropsychology; (2) an expert in the criminal prosecution of elder abuse; (3) a probate attorney with extensive experience with conservatorships, estate planning, and undue influence; and (4)
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#1732780364276684-427: A testator leaves property to the attorney who drew up the will. However, that is dependent on the circumstances of such a relationship and typically the burden is initially on the person contesting to show undue influence. Proving undue influence is difficult. In Australia, a challenger must show that the free will of the testator has been overborne by words and actions of the alleged wrong doer(s), to such an extent that
741-438: A testator with serious dementia may have "lucid periods" and then is capable of writing or modifying a will. Other nations like Germany may have more stringent requirements for writing a will. Lack of mental capacity or incompetence is typically proven by medical records, irrational conduct of the decedent, and the testimony of those who observed the decedent at the time the will was executed. Simply because an individual has
798-454: A will ), and fraud in the inducement (for example, the testator is intentionally misled by a material fact that caused the testator to make a different devise from the one he would otherwise have made). A will contest may be based upon alleged failure to adhere to the legal formalities required in a particular jurisdiction. For example, some states require that wills must use specific terminology or jargon, must be notarized, must be witnessed by
855-413: A will contest is based on allegations that the will is forged . Forgery can range from the fabrication of an entire document, including the signatures, to the insertion or modification of pages in an otherwise legitimate will. According to a 2009 Wall Street Journal article, "charges of forgery are more common than proven cases of it. They often originate with an adult child who, feeling short-changed in
912-417: A will may be forced to pay the costs for both sides in the court battle. Courts do not necessarily look to fairness during will contests, and a considerable portion of will contests are initiated by those who have no cause of action justifying a court case but are instead reacting to "hurt feelings" of disinheritance. In other words, just because the provisions of a will may seem "unfair" does not mean that
969-469: A will must establish its validity by a preponderance of evidence, but those contesting a will must prevail by showing clear and convincing evidence, the latter requiring a much higher standard of proof. Contesting a will can be expensive. According to a Boston-area estate planning attorney quoted in Consumer Reports (March, 2012), "A typical will contest will cost $ 10,000 to $ 50,000, and that's
1026-428: A will; recommendation by the beneficiary of an attorney to draw the will; knowledge of the contents of the will by the beneficiary prior to execution; giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will; securing of witnesses to the will by the beneficiary; and safekeeping of the will by the beneficiary subsequent to execution. In most U.S. states, including Florida , if
1083-644: Is a process , not a single event. A manipulator may spend weeks, months, or even years before successfully unduly-influencing their victim. Anyone is susceptible to UI, but the elderly are particularly vulnerable. Perpetrators of UI operate in shadow, enacting their manipulation behind closed doors where there are no witnesses. A person being unduly influenced may become withdrawn, depressive and passive. Physical signs of abuse may include unexplained bruising, scratches, and/or broken bones. Other signs may include missing or broken dentures, prescription eyeglasses , hearing aids or other assistive devices. A distinction
1140-698: Is controlled by this aging demographic making them a potential target for exploitation. Modern families are becoming more complex and dispersed. Given these factors, the number of will contests involving undue influence is expected to increase. Some factors have been identified that increase the likelihood of a person being susceptible to manipulation. Some of these factors include, but are not limited to: A person seeking to exert undue influence on another person usually does so by leveraging their position of apparent authority. Some of these tactics include: Lawsuits against estate planning attorneys have increased in recent years. Legal malpractice in trusts and estates
1197-561: Is having an affair with Phoebe, which Monica believes. Distraught, Monica rewrites her will, disowning both Chandler and Ross. The attorney who drafts the will accidentally writes the gift to Rachel as $ 500 instead of $ 5,000 and also accidentally leaves Joey out entirely. Under such facts: Common grounds or reasons for contesting a will include lack of testamentary capacity, undue influence, insane delusion, fraud, duress, technical flaws and forgery. Lack of testamentary capacity or disposing mind and memory claims are based on assertions that
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#17327803642761254-405: Is leveraging unfair tactics on the victim, an assessment specific to undue influence is required. Undue influence occurs in various circumstances including, but not limited to domestic violence , hostage situations , cults , prisoners of war , and dictatorships . The common theme among these situations is the aspect of psychological manipulation . Traumatic bonding may occur between
1311-476: Is made between the nature of capacity and undue influence. In assessing capacity, the practitioner evaluates an individual's ability to competently perform tasks (e.g., execute a will or give medical consent). These assessments give insight to the functioning of the cognitive capabilities at that moment in time. Conversely, screening for undue influence is focused on the process of events which occur over an extended period. To determine whether another person
1368-405: Is now considered to have the highest risk of exposure, representing 12% of all legal malpractice claims. Due to changes in privity laws, many states allow third-party beneficiaries to bring a lawsuit against an attorney who executed a will that is later deemed to be a product of undue influence. Experienced estate attorneys tend to be vigilant of "red flags" indicative of undue influence during
1425-402: Is often impossible for the contestant of a will to produce. Access to the individual is typically controlled by the influencer so that friends and family are unable to observe the perpetrator engaging in manipulation, thus a challenger is often unable to provide direct evidence. In an effort to address this substantial power distinction, many states allow for the burden of proof to be shifted to
1482-411: Is required to prove that the testator made the will of their own volition, and was not under any influence at the time it was executed. Undue influence originated from English common-law in a doctrine from 1617. Chancellor Bacon found that a woman who "worked on the simplicity and weakness" of an elderly man was guilty of undue influence. A focus group and a panel of experts were tasked to undertake
1539-399: Is typically perpetrated by a person who is trusted by the victim and is dependent on them for emotional and physical needs. Caregivers are often found to have unduly influenced their patients, however, anyone in a position of trust and authority over the victim (e.g. fiduciary ) may be guilty. This includes the victims' attorney, accountant, nursing home attendant, or even children. UI
1596-527: The law of property , is a formal objection raised against the validity of a will , based on the contention that the will does not reflect the actual intent of the testator (the party who made the will) or that the will is otherwise invalid. Will contests generally focus on the assertion that the testator lacked testamentary capacity , was operating under an insane delusion , or was subject to undue influence or fraud . A will may be challenged in its entirety or in part. Courts and legislation generally feel
1653-534: The American Psychological Association have analyzed similarities between cult members and domestic violence. These accounts share an element of power distinction between the alleged influencer and the vulnerable adult. Clinical models have been developed in an effort to assist clinicians and practitioners in determining if UI is present and to build a legal case. Some of the most prevalent models are discussed below. The IDEAL model
1710-576: The United States than in other countries. This prevalence of will contests in the U.S. is partly because the law gives people a large degree of freedom in disposing of their property and also because "a number of incentives for suing exist in American law outside of the merits of the litigation itself". Most other legal traditions enforce some type of forced heirship , requiring that a testator leave at least some assets to their family, particularly
1767-514: The United States, research finds that between 0.5% and 3% of wills are contested. Despite that small percentage, given the millions of American wills probated every year it means that a substantial number of will contests occur. As of the mid-1980s, the most common reason for contesting a will is undue influence and/or supposed lack of testamentary capacity, accounting for about three quarters of will contests; another 15% of will contests are based on an alleged failure to adhere to required formalities in
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1824-415: The alleged influencer if certain requirements are satisfied. Jurisdictions vary as to the requirements, but in general, the burden is shifted when the combination of a confidential or fiduciary relationship with the donor and suspicious circumstances are found. Such circumstances include: Once shifted, the proponent of the contested will is tasked with rebutting the presumption. The alleged influencer
1881-497: The basis that a child of the deceased (or somebody treated as such) was bequeathed nothing or less than could reasonably be expected. Certain jurisdictions, like Australia and its States and Territories, have enacted legislation such as the Succession Act 2006 (NSW) that permits an eligible person to contest a will if it failed to adequately provide for that person's proper education, maintenance and advancement in life. In
1938-437: The challenger of a will is able to establish that it was actively procured, the burden of proof shifts to the person seeking to uphold the will to establish that the will is not the product of undue influence. However, undue influence is notoriously difficult to prove, and establishing the someone has the means, motive and inclination to exert undue influence is not enough to prove that the person in fact exerted such influence in
1995-515: The common trust. Certain property falls outside the estate for administration purposes, the most common example probably being houses jointly owned that pass by survivorship on the first death of a couple into the sole name of the survivor. Other examples include discretionary death benefits from pension funds, accounts with certain financial institutions subject to a nomination and the proceeds of life insurance policies which have been written into trust. Trust property will also frequently fall outside
2052-404: The contrary, witnesses and evidence supported the position that the caretaker visited the decedent in the hospital every day, and the caretaker gave credible testimony that she was continuing to care for the dog. Accordingly, the court set aside the will as invalid based upon insane delusion. Duress involves some threat of physical harm or coercion upon the testator by the perpetrator that caused
2109-584: The court compels him or her to enter into a bond with two or more sureties that he or she will not prefer his or her debt to those of other creditors. The more important cases of grants of special letters of administration include the following: In the first case the principle of administration cum testamento is followed, in the second that of general grants in the selection of the person to whom letters are granted. Will contest Sections Contest Property disposition Common types Other types Governing doctrines A will contest , in
2166-512: The court will grant administration to the heir to the exclusion of the next of kin. In the absence of any heir or next of kin, the Crown has the right to property (other than land) as bona vacantia , and to the land by virtue of the historic land rights of the Crown (and the Duchy of Cornwall and Duchy of Lancaster in their respective areas). If a creditor claims and obtains a Grant of Administration,
2223-434: The deceased’s freedom of testation has been taken away. Insane delusion is another form of incapacity in which someone executes a will while strongly holding a "fixed false belief without hypothesis, having no foundation in reality." Other courts have expanded on this concept by adding that the fixed false belief must be persistently adhered to against all evidence and reason, and the irrational belief must have influenced
2280-409: The decedent was suffering from an insane delusion at the time the will was executed and that she thus lacked testamentary capacity. The decedent's physicians testified regarding the medication that the decedent was taking and how it had changed her personality. A psychiatrist who saw the decedent opined that she was delusional when she stated that the caretaker had abandoned her and had killed her dog. To
2337-440: The disputed will; the remainder of contests involve accusations of fraud, insane delusion, etc. The vast majority of will contests are not successful, in part because most states tend to assume that a properly-executed will is valid, and a testator possesses the requisite mental capacity to execute a will unless the contesting party can demonstrate the contrary position by clear and convincing evidence. Generally, proponents of
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2394-432: The drafting and execution of a will. Because a will is the most important document most individuals sign in their lives, and it affects property rights for all time, the process should be taken seriously. Many attorneys incorrectly assume that estate planning is a simple area of law. Some less-informed attorneys believe estate planning to be a simple, fast, and easy way to make a quick buck, this could not be farther from
2451-412: The drafting or provisions of the will. In Florida , one of the most-often cited court rulings on insane delusion is from 2006. In this case, the decedent executed a new will in 2005 in the hospital with severe pain and under the influence of a strong medication. She died the next day. The new will disinherited the caretaker and left the decedent's estate to several charities. The caretaker asserted that
2508-570: The estate but will depend on the terms of the trust. Upon the death of a person intestate, or of one who left a will without appointing executors , or when the executors appointed by the will cannot or will not act, the Probate Division of the High Court of Justice or the local District Probate Registry will appoint an administrator who performs similar duties to an executor. The court does this by granting letters of administration to
2565-404: The execution of the will. There are four general elements of fraud : false representations of material facts to the testator; knowledge by the perpetrator that the representations are false; intent that the representations be acted upon and resulting injury. There are two primary types of fraud: fraud in the execution, (for example, the testator was told the will he signed was something other than
2622-410: The one making the will. Mere affection, kindness or attachment of one person for another may not of itself constitute undue influence." For example, Florida law gives a list of the types of active procurement that will be considered in invalidating a will: presence of the beneficiary at the execution of the will; presence of the beneficiary on those occasions when the testator expressed a desire to make
2679-537: The person so entitled. Grants of administration may be either general (where the deceased has died intestate) or limited. The order in which the court will make general grants of letters follows the sequence: Under the rules for distribution of estates without a will (the Intestacy Rules ), where a child under 18 would inherit or a life interest would arise, the Court or District Probate Registry normally appoints
2736-480: The property of the deceased within England and Wales , then the estate will go to probate . However, if no will is left, or the will is invalid or incomplete in some way, then administrators must be appointed. They perform a similar role to the executor of a will but, where there are no instructions in a will, the administrators must distribute the estate of the deceased according to the rules laid down by statute and
2793-447: The spouse and children. Typically, standing in the United States to contest the validity of a will is limited to two classes of persons: For example, Monica makes a will leaving $ 5,000 each to her husband, Chandler; her brother, Ross; her neighbor, Joey and her best friend, Rachel. Chandler tells Monica that he will divorce her if she does not disown Ross, which would humiliate her. Later, Ross tells Monica (untruthfully) that Chandler
2850-582: The testator lacked mental capacity when the will was drafted, and they are the most common types of testamentary challenges. Testamentary capacity in the United States typically requires that a testator has sufficient mental acuity to understand the amount and the nature of the property, the family members and the loved ones who would ordinarily receive such property by the will, and (c) how the will disposes of such property. Under this low standard for competence, one may possess testamentary capacity but still lack mental capacity to sign other contracts. Furthermore,
2907-400: The testator's direction; and... signed by at least two individuals, each of whom signed within a reasonable time after he witnessed either the signing of the will... or [received] the testator's acknowledgment [that he or she actually signed the will]." In a Pennsylvania case, the wills of a husband and wife were invalidated because they accidentally signed each other's wills. In some cases
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#17327803642762964-418: The testator. Such allegations are often closely linked to lack of mental capacity: someone of sound mind is unlikely to be swayed by undue influence, pressure, manipulation, etc. As it is required for invalidation of a will, undue influence must amount to "over-persuasion, duress, force, coercion, or artful or fraudulent contrivances to such a degree that there is destruction of the free agency and will power of
3021-478: The truth. An attorney involved in estate planning should exercise diligence and thoroughly document their work in the event they find themselves exposed to a malpractice suit. Ignoring indications of UI by the estate planning attorney can put them in a precarious position of needing to explain why they redirected a testator's estate while their client was unduly influenced. Because of the secrecy and tactics leveraged by an influencer, direct evidence of wrongdoing
3078-561: The validity of the will. Such no-contest clauses are permitted under the Uniform Probate Code , which most American states follow at least in part. However, since the clause is within the will itself, a successful challenge to the will renders the clause meaningless. Many states consider such clauses void as a matter of public policy or valid only if a will is contested without probable cause . This article mainly discusses American law and cases. Will contests are more common in
3135-492: The victim and influencer, as a result, the victim may even defend the perpetrator. The effectiveness of cult tactics (e.g. love bombing ) on young and healthy individuals illustrates that anyone, regardless of mental status, is a potential victim of UI under certain circumstances. Elderly Americans are living longer, and with this increased life expectancy, the prevalence of cognitive disorders associated with advanced age has also increased. A significant concentration of wealth
3192-403: The will is invalid. Therefore, wills cannot be challenged simply because a beneficiary believes the inheritance or lack thereof is unfair. In the United States, the decedent generally has a legal right to dispose of property in any way that is legal. Depending on the grounds, the result of a will contest may be: Undue influence Undue influence (UI) is a psychological process by which
3249-466: Was caught after forging one patient's will to benefit himself. Some jurisdictions permit an election against the will by a widowed spouse or orphaned children . That is not a contest against the will itself (the validity of the will is irrelevant), but an alternate procedure established by statute to contest the disposition of property. In the United Kingdom , wills are often contested on
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