If you are upset that your recently deceased parent decided to leave all of their assets to your brother, but neglected to leave anything to you and your other siblings, you might feel compelled to challenge the will. After all, aren’t you entitled to a portion of the estate? The short answer is, no. This may come as a shock to some, but parents are not legally obligated to leave an inheritance to their adult children.
While this might seem like a cruel and heartless technicality, in reality it is merely a recognition that people are free to dispose of their property as they see fit. Now, that is not to say you should selfishly and callously leave your family high and dry. But all things considered, the law is a reflection of the delicate realities that guide our decisions about property we have spent a lifetime trying to accumulate and preserve. Why should family dynamics not play a role in these decisions?
Of course, the law does provide certain inheritance rights when someone dies without having created a will. But these laws (called “intestacy laws”) vary from state to state, and don’t necessarily grant children an automatic inheritance.
When there is a will, however, unless certain things can be proved, the instructions provided in the will prevail. But will challenges can be difficult to prove, and the burden lies on those bringing the challenge to produce enough evidence to have the will declared invalid or void.
Once a will is filed in the probate court, anyone with an interest in the estate (e.g., your siblings) can file a motion challenging the will’s validity. Whether or not this challenge succeeds depends on the circumstances surrounding the creation and execution of the will.
So what theories are available to those interested in challenging a loved one’s will?
Every state has laws that spell out the requirements needed to execute a valid will. In Massachusetts, for example, execution and witnessing of wills is controlled by the Massachusetts Uniform Probate Code (MUPC).
Under the MUPC, you have to be at least 18-years-old and of sound mind to make a will. In addition, the will must be in writing and signed by the testator (the person whose will is being created). If the testator cannot personally sign the will due to some physical disability, the will can be signed by another individual in the presence of the testator and at the testator’s direction. Finally, the will must be signed by at least two witnesses who can attest to the testator’s state of mind and to the testator’s acknowledgment of his or her own signature.
In order to succeed in a challenge to a will’s execution, the challenger has to put forth sufficient evidence that one or more of the above requirements was not met. This is made even more difficult if, as is commonly done, the witnesses also sign a “self-proving affidavit,” which is then notarized and attached to the will.
Lack Of Capacity
Another ground for challenging a will is to argue that the testator lacked the mental capacity to execute the document in question. Here, in order to succeed on this theory, the challenging party would have to show evidence that the testator did not understand the nature and extent of his or her property, and did not understand the natural objects of their bounty (meaning, the person did not understand who should naturally receive their assets).
This is difficult to prove, as well, and may very well require testimony from medical experts and the family doctor. But importantly, since mental capacity can come and go, it is possible that a person might not be of sound mind on one day, but be perfectly capable of understanding exactly what they are trying to achieve the next.
Fraud Or Undue Influence
A third theory for challenging a will is by claiming the document was the result of fraud or undue influence. There are generally two types of fraud that could be asserted: (1) that someone tricked the testator into signing the will, or (2) that someone deliberately misled the testator about the contents of the will.
Similarly, to claim the will was the product of undue influence or duress is also an uphill battle. In this case, it would have to be proven that the testator was forced into signing the document against their will, using threats or intimidation. This generally means that the testator was under the complete subordination and domination of the other person and was essentially given no choice but to sign the document.
While it is not impossible to successfully challenge a will, each of these theories is relatively difficult to prove, as they are all very fact-intensive and evidence-based. And since the burden of proving one of these theories rests on the person(s) bringing the challenge, there needs to be something more than the feeling that you were entitled to something you did not receive.