It is not unusual for some family member to be shocked when the Last Will and Testament of a recently deceased person reveals that they have been disinherited. The following is an example of a situation that frequently occurs:
John Smith is an 87 year old widower, with four adult children – James, Robyn, Phillip and Jessica. Twenty years previously John signed a Will prepared by an attorney, like an estate planning or estate litigation lawyer trusts. The Will stated that all his property would go to his wife, unless she predeceased him, in which case his property would be divided equally among his four children.
John dies just a few weeks before his 88th birthday. Five years prior to his death John had moved into the house owned by his daughter Robyn and her husband, and shortly thereafter signed a new Will leaving his entire estate to Robyn. What options are open to the remaining children to prevent being totally disinherited by this new Will?
- Mental Incompetence
After Robyn’s attorney files for a probate of the Will, the remaining children can contest the validity of the Will on the ground of mental incompetence. That is, they can try to persuade the judge that John Smith was suffering some a significant mental or psychological condition, such as Alzheimer’s disease, so as to render him mentally incompetent to sign a valid Will.
This will not be an easy task. The bar for mental competency to sign a Will is not very high. Moreover, most courts put the burden of proof on the persons contesting the Will to prove incompetence. That is, if the evidence is equally balanced on each side, the judge will uphold the Will.
Another barrier to remaining siblings’ case is that they will have to prove that their father was incompetent at the precise time that he signed the Will. Many persons with Alzheimer’s disease have periodic moments of lucidity during the course of their disease, and even in the course of a single day.
- Undue Influence
Some courts recognize the doctrine of undue influence to contest the validity of a Will. Undue influence has defined as domination by the guilty party over the testator to such an extent that his free agency is destroyed and the will of another person substituted for that of the testator. In the situation described above, the siblings may be able to prove that Robyn isolated their father from his other children, and intimidated him to change his Will be suggesting that his food and medicine were totally dependent on Robyn’s good graces.
If the remaining siblings can prove either mental incompetence or undue influence, the judge can declare the Will invalid and order John Smith’s property equally divided among his surviving children.