Domina Law Group pc llo’s trial services have been used in Will Contest
cases and similar law suits, in multiple states. Several were tried to
conclusion before juries. Some common features are recurrent in Will Contest
cases. They are worth knowing about.
First, Will Contests must be filed by persons with interests in the estate
whose rights are affected by the Will to be contested. Before a Will can
be contested, someone must offer it to the Court as a valid instrument.
This is called offering the Will for probate.
In most states, the act of offering a Will for probate triggers strict
deadlines for contestants to meet if their disputes about the validity
of Wills are to be presented in Court on a timely basis. One contesting
a Will must:
1. Make a timely objection to the Will and ask the Court to declare it
invalid and deny it probate.
2. Set forth the reasons why the Will is invalid and prove those reasons.
Wills can be contested on three (3) broad grounds:
1. The formalities of execution required for Wills are not met.
2. The testator, or one making the Will, was not mentally competent to
do so or lacked testamentary capacity.
3. The testator, or one making the Will, was the victim of undue influence,
i.e., influence so invasive it overcame the testator’s independent judgment.
The Formalities of Execution
Wills must be executed in conformity with strict statutory requirements.
Handwritten or “holographic” Wills are inadmissible in some
states, and admissible in others, but only after careful scrutiny. Generally,
to be formally executed these conditions must be met:
The testator or person making the Will must (a) declare, in the presence
of at least two disinterested witnesses, i.e., persons who do no inherit
under the Will, that the instrument in question is the testator’s
last Will and (b) declare the testator wants to execute the Will freely
In most states, the testator and two witnesses must sign the document,
or acknowledge their signatures on it, in the presence of one another.
In many states, this can be done before a notary public who takes the
oath of the testator and attesting witnesses. Under oath, these persons
recite they are executing the document as a voluntary act.
The formalities of execution are generally met with relative simplicity,
though full blown Will Contests can develop over questions about how a
Will is signed.
Testamentary or Mental Capacity
Most Will Contest cases raise questions about the capacity, i.e., mental
ability of the testator to make a Will. Four general criteria must be
present for one to possess appropriate testamentary capacity. Four elements
require proof in most states by the greater weight of the evidence to
establish testamentary capacity. This means it must be proven that when
the Will was executed the Testator had the capacity to:
1. Know the nature of (their acts, the act of making and executing a Will,
the nature of their acts in making and executing a Will);
2. Know the nature and extent of their property;
3. Know the proposed disposition of their property; and
4. Know the natural objects of their bounty.
Testamentary capacity is not necessarily the same as medical soundness
of mind. People may be rational upon one or more subjects and still not
have testamentary capacity. And they may have testamentary capacity even
though they (are elderly, are ill, are unable to transact some business
affairs, have peculiar habits, are eccentric, are slovenly, are subject
to delusions or other mental or physical infirmities, have an impediment
of speech, have a weak understanding, et cetera).
Delirium, dementia, limited mental acuity, mental illness, or physical
illness so extreme as to diminish mental capacity, are often issues. Many
times, medical proof is involved in establishing, or defeating claims
of a decedent’s testamentary or mental capacity to make a Will.
Sometimes, mental capacity is diminished, but theoretically intact. At
times, diminution in testamentary capacity will set the stage for claims
that the third ground for contesting a Will – undue influence –
Undue Influence Over the Testator
A valid Will must express the testamentary or death-time dispositive desires
of the person making the Will. A Will is invalid if it expresses what
someone other than the testator wanted, and achieved by overpowering the
testator’s independent decision-making capacity. This is called
Undue influence is similar to fraud. It is not the same as fraud. One can
be unduly influenced by many things. These might include:
2. False promises;
3. Concealment of true facts;
4. False friendship;
5. Defamation or malignment of others;
6. False affection.
Many states require that undue influence be proven by clear and convincing
evidence. Evidence is clear and convincing if it leads a reasonable person
with little doubt, and a high degree of confidence, about the appropriate
outcome. Others require proof by the greater weight, or preponderance,
Undue influence cases sometimes involve medical or psychological testimony.
Often they depend on testimony about a deceased testator’s loneliness,
dependence, character weaknesses, including excessive approval seeking,
or similar features of the decedent’s personality. Frequently, too,
undue influence cases include presentation of evidence of bad motives,
abundant opportunities, and outcomes which are unnatural looking and the
apparent product of, overreaching activity that appears to have duped
the testator into a decision contrary to his or her actual desires.
Exemplar Will Contests & Similar Cases
Domina Law Group pc llo’s Will Contest experience involves an array
of circumstanvces. Related contests involving the validity of deeds and
trusts have commanded the Firm’s attention, too. So have disputed
life insurance policy beneficiary designations.
Will Contest cases arise where someone unexpected receives benefits at
the time of a decedent’s death that were not expected, foreseen,
and are not readily understood or appreciated. Domina Law Group pc llo
has helped set aside, or defend, Wills for Clients in cases arising from:
1. Execution of Wills on the testator’s death bed;
2. Wills signed in unusual places;
3. Wills and trusts containing unnatural distributive provisions;
4. Wills or trusts for a second or subsequent spouse where children are
omitted, and unnatural, or unusual circumstances due to marriage, including
age disparity, interest disparity, etc.;
5. Contests over Wills or trusts believed to be inconsistent with lifetime promises;
6. Wills or trusts drafted by lawyers or others relatively unknown to the
testator, and often selected by the unexpected beneficiary or recipient.
The Jury’s Role
Will Contests, particularly those raising testamentary capacity or undue
influence issues, are generally tried to a jury. The jury’s role
is to decide whether the Will was made by a competent testator, who expressed
his or her own desires, or by an incompetent testator, or one whose own
will or desires were overcome by inappropriate and undue influence.
Will Contest trial work is not always intuitive at all. It requires considerable skill.