Families fight. You always hope that they won’t, but they do. A lot of times they fight over the silliest things based on some principle. Other times there is real substance to the fight. And it doesn’t even have to be a real family.

In probate, people fight over a lot of things. It may be that they were written out of the will. One time we defended an estate where a nephew of a woman (who never married) thought he was entitled to half of her estate. It didn’t matter that he hadn’t talked to her by any means in at least 10 years, if not more. He was entitled. The sad thing was he got an attorney to take the case. He wanted hundreds of thousands of dollars, but he settled for $2500. It would’ve cost more than that to litigate the matter.

 We have prosecuted will contests where people had themselves written into an unrelated person's will. We are seeing that more often than I care to think about in our society. There are a lot of lonely, estranged elderly people around us. Sometimes they are discovered by people I consider to be predators. They insinuate themselves into someone’s life, and over time, gain their confidence. They work to increase the older person's isolation and estrangement from family, and then they get themselves written into the person’s will, promising that they will take care of them to the bitter end. We’ve even seen wills where the decedent refers to the predator as a family member. The reality is that when the victim’s health fails, the predator is gone on to his or her next victim.

The typical causes of action in a will contest are (1) undue influence and (2) lack of competency. In order to prove undue influence, the plaintiff has to show that the alleged predator applied so much pressure (psychological or emotional) to the decedent that the decedent couldn’t even think straight. This would be the case with the predator completely isolating the vulnerable older person as discussed in the preceding paragraph.

Competency in estate planning is actually pretty minimal, compared to what you’d need for contracts. In a contract setting, the person needs to be able to understand the “deal.” In estate planning, a person generally needs to know the nature, extent, and value of their assets and the “natural objects of their beneficence.” (Good phrase, huh? Learned it in law school.) They don’t need to know the exact value of their investments and their home, but they need to have a general idea of what they own and some reasonable approximation of its value. And they need to know who their kids are even if they’re writing them out of the estate plan. That’s why it’s critical to list your children in your will even if you’re leaving them nothing.

One of the benefits of working with an attorney in doing an estate plan is that the attorney can determine whether a person is competent. In addition, the attorney will be able to testify as to the person's competency in the event of a future will contest. I think wills written using web-based programs are going to be ripe for future litigation.

There are a lot of attorneys around looking for work. I’m afraid that we will see more will contest as a result. In addition, I think we will come across more of the estate predators because so many of our older people are alienated from their families for one reason or another.

Will contests – they’re just a fact of life.

If you live in Missouri and have a conflict, dispute, or contested will contact Fred today or complete and submit the form on the right.  Your first meeting is free and the longer you wait the more problems will arise so please call now!

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