Contesting a Will is No Easy Feat

When it comes to executing a will, many people worry unnecessarily that their wills might be contested.

Not All Influence is Excessive

The case of a Wisconsin family is typical of many will contests.

Zoura Drexler left her entire estate to one of her two children, Albert Horlacher. Several of Mrs. Drexler’s acquaintances, including physicians, an attorney, a neighbor and a cleaning lady, all testified that she had been competent.

The daughter who was excluded from the will, Barbara Horlacher, called in a medical expert who had reviewed her mother’s medical records. But the expert had never examined, met or treated the decedent.         

The court ruled that Mrs. Drexler had not been subjected to undue influence.

According to the court, the evidence showed that Drexler had sound reasons for excluding her daughter from the will: “Drexler believed that Barbara had been adequately provided for by her father’s estate, and was concerned that Barbara would dissipate anything she received. Further, Barbara had been insolent to Drexler, telling Drexler that she could not wait for her to die so she could inherit her estate.”

The excluded daughter appealed and attempted to introduce into evidence her brother’s psychiatric treatment records. That failed and the appeals court affirmed that although the son had financial power of attorney, he used the power “very, very carefully, very scrupulously, very infrequently and for very minor matters.”

The case illustrates that family members frequently influence each other and this is not always considered excessive.(Horlacher v. Drexler, Wisconsin Ct. of Appeals, Dist. II, 5/7/03)

In fact, wills are seldom contested and even when they are, the challenges rarely succeed. One of the most difficult claims is that the decedent had been unduly influenced, or pressured, by someone with a vested interest in the provisions of the will.

Simply put, the issue of undue influence deals with how competent the decedent was to make a will that reflected his or her own desires.

To test for undue influence, courts generally look for:

  • Evidence of control sufficient to have forced the decedent to do something extraordinary.

  • Evidence of fraud.

  • Threats or misrepresentations.

  • Physical or mental coercion.

The burden of proof is ordinarily on the person challenging the will, as courts assume that properly executed wills are valid. However, if one beneficiary benefits greatly from the will and presses the court to approve it, the burden of proof may switch, forcing the person to prove that undue influence did not exist.

Most states require a high burden of proof in these cases. Since undue influence is almost always exerted in private, it can be difficult to show the type of acts that can produce a successful challenge. Moreover, it is generally accepted that family, colleagues and neighbors regularly influence people, and that such influence is not necessarily inappropriate.

Challengers do however, have one advantage – they can generally supply circumstantial evidence to support their cases. Some factors courts may consider are:

  • Fraud.

  • A hasty execution of the will.

  • Concealment of a new will.

  • Active involvement of a beneficiary in securing a new will, such as making appointments, preparing the forms, and answering the questions.

  • Inconsistency between the new will and previous estate plans.

  • Provisions in the will that don’t match family relationships and attitudes of the decedent.

  • The decedent’s susceptibility to undue influence.

  • The weakened condition of the decedent.

  • A “confidential relationship” such as a power of attorney, close family connection or fiduciary relationship.

  • The fact the decedent was dependent on and placed trust in a beneficiary.

  • A beneficiary who benefits substantially from the will.

One, or even several, of these elements won’t automatically invalidate a will, but the cumulative effect may provide enough evidence for a challenge.

To ensure an ironclad will: Engage professional help in executing your estate plan, particularly if you are concerned about a challenge to your will. Once your estate planning adviser properly prepares your will, don’t worry unnecessarily about someone successfully contesting it.

Copyright © 2014 Bonfiglio & Asterita, LLC. All Rights Reserved. Attorney Advertising prior results do not guarantee a similar outcome. Be sure to visit Bonfiglio and Asterita, LLC NY Attorneys at Law on Google Plus Also visit Bonfiglio and Asterita, LLC NJ Attorneys at Law on Google Plus


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