Where There's a Will …

There's a way to contest it. But the cost can be high, and not just in money

Nancy Mann Jackson,

AARP Bulletin

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Published August 17, 2011

Legal strategies for contesting an invalid will

Photo by Istock; Alamy

After Paul Young's mother died in February 2010, he was shocked to discover that she had left a $600,000 home, all its contents, all her checking accounts and 80 percent of the rest of her property to his sister. Young's grown stepdaughter, on whom his mother had doted since she was a toddler, was left completely out of the will.

"This came totally out of the blue, and we still don't know the motivation behind the slight," says Fran Young, Paul Young's wife of 25 years. "Paul feels helpless in this situation."

But is he?

The chances of success are slim, but wills can be challenged in court.

New York-based estate attorney Herb Nass regularly takes calls from people who feel dissatisfied about a departed loved one's will and want to know about filing a challenge. "People are trying to do it more and more as the parents of baby boomers are dying, and I'm seeing a lot of rivalry between siblings," says Nass, author of The 101 Biggest Estate Planning Mistakes.

What you need to contest

Anyone who wants to revise a will after the author's death must attempt to establish one of the following four legal grounds:

Undue influence. It's difficult to prove, but if the deceased person was pressured extensively by someone to change the will, you have a case.
Fraud. Also difficult to prove, but if the will's author was tricked into signing a will — maybe he or she was told it was a deed or some other legal document — the will is invalid.
Improper execution. If the will was not prepared or executed properly under the laws of the state in which it was created, it could be thrown out in court.
Lack of capacity. If the will maker was not mentally capable of thinking out the issues involved in a will at the time it was created, the will could be invalid.

Consider the cost

When considering whether it's worth the effort to contest, take a look at the dollars involved. Maybe you're more interested in proving wrongdoing than in padding your own bank account, but it's not worth pursuing a case if you'll lose money even if you win.

"All unjust situations should be pursued, but if all you're going to get is the balance of a checking account worth $2,000, and it costs tens of thousands of dollars to bring the case, the cost-benefit analysis doesn't really justify it," says Joanne Fanizza, an elder-law attorney in Farmingdale, N.Y., and Fort Lauderdale, Fla.

If elder abuse is suspected, contesters may be able to pursue criminal charges against the offender. That avenue may make more sense than pursuing a civil case in which the cost is prohibitive, Fanizza says.

In addition to financial cost, advisers say cost to personal relationships must be considered. While feeling slighted by a late relative — and missing out on a potentially large inheritance — can be painful, the emotional strain of going to court can be just as tough.

"Contesting a will can permanently affect relationships with the adversary," says David Okrent, an estate attorney in Dix Hills, N.Y. People who take on a sibling or parent in court may prevail, "but they may be left without their sibling or parent ever speaking to them again."

The final thing to consider is that successful will contests are few and far between. Fanizza says she's had only a handful of them in her career, and all were settled out of court.

In the end, Paul Young joined the ranks of dissatisfied heirs who decide to let it go. He did not contest his mother's will.

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