When Wills are Contested – Who Wins and Loses? Part IIIEd Olkovich
You must make a will to protect your family and your money. That’s what estate planning is all about. You do it for the people you leave behind so they do not have problems. This is a series on how your money gets wasted if your will is contested. Yes, a court can declare your will invalid as I will explain.
Making a proper will is the cornerstone of your estate plan. You decide who is in charge of your stuff after you are gone. You decide who gets the money that took you a lifetime to earn.
In the first part of this contested wills series, I described why Stephen was upset. He believed his sister, Linda, started all of his problems. In this post, I tell you Linda’s side of the story.
Stephen’s sister, Linda, is an accountant who took her brother’s threat of a lawsuit seriously. She went to her own lawyer, Elizabeth, to explain what she had done for her uncle.
“My uncle owes me everything because I took care of him. He said I should get his entire estate because my brother had disgraced the family. Uncle Reg knew what he wanted to do with his estate. How can a court say that he didn’t know what he was doing? What’s the point in making a will if a court can cancel it? My uncle said I should get his entire estate since Stephen was arrested and went bankrupt.”
Elizabeth, Linda’s lawyer, explained the dangers. If Uncle Reg’s last will was not valid, his previous will may be. If this “prior” will gave Stephen half of the estate, he might attack the will and what Linda had done.
Standard Attack Ammunition
Elizabeth gave Linda these five grounds on which Stephen could shoot down his uncle’s will:
1. Fraud or Forgery
- Where and how did Reg sign the will?
- Was it in the hospital or lawyer’s office?
- Who can confirm his signature was not forged?
- Was Stephen actually bankrupt and arrested?
- Did this disgrace the family or did Linda make this story up?
2. Legal formalities
Was the will properly signed in the presence of the two witnesses? If it is a holograph will – 100% in the uncle’s handwriting – can experts confirm whose handwriting it is? Are holograph wills always valid?
3. Lack of capacity
Did Uncle Reg have capacity when he signed the will? Was his memory impaired? Was a lawyer present who can confirm that Uncle Reg knew his assets and intentions? Was there anyone else present during this conversation? Did the lawyer adequately test Reg for capacity? How did the lawyer ensure Reg understood his will before he signed?
4. Suspicious Circumstances
Perhaps there is an explanation for why the uncle cut out Stephen from the previous will. Are the grounds reasonable, based on influence from Linda, or a delusion? Did someone other than Reg tell his lawyer what to do? Did the lawyer go to visit him in the hospital?
5. Undue Influence
Did Uncle Reg decide to cut Stephen out? Did Reg base his decision on a misapprehension? Did Reg’s age, mental or physical condition make him susceptible or dependent on Linda? Was he vulnerable to her influence because of illness or disease?
In the next post, I deal with who wins and loses if your will is contested. You’ll want to read it to make sure you don’t waste money on either.
More Will Tips: How Your Money is Wasted
Make sure your money does not get wasted because you have a bad will. This can easily happen when you:
- pay too much in taxes
- ignore your legal duty to support spouses
- forget your moral obligations
- make a cheap or defective will
- force your family to fight over your will.
See my related blog post, FAQ page, free guide and ebook
How to Contest a Will (ebook)
Edward Olkovich (BA, LLB, TEP, C.S.) is a nationally recognized author and estate expert. He is a Toronto estate lawyer and Certified Specialist in Estates and Trusts. Edward has practiced law since 1978 and has authored seven books. Visit his website, mrwills.com, for more free valuable information.
© Edward Olkovich 2012