OCTOBER 24, 2016 VOLUME 23 NUMBER 40
We often tell clients that they should think twice (or perhaps thrice) before challenging a will. It is difficult to prevail in a will contest, but there are also other problems. The will in question might have a provision that completely disinherits anyone challenging their reduced share. There may also be other repercussions, as evidenced by a story we read recently arising from a Wisconsin court case.
Bruce and Jenny (as we usually do, we’ve changed their names) married later in life, but lived together for over thirty years before Bruce’s death. Bruce had five children from his first marriage; Jenny was childless. They had identical wills, written about a decade after they married. Each left their entire estate to the other, and on the second death everything would go to Bruce’s son Larry.
Their wills also contained a routine provision, requiring the surviving spouse to live at least four months after the first spouse’s death; if the survivor did not live that long, they would be treated as having predeceased the first spouse. Why include such a provision? To avoid having to conduct two probate proceedings (or, for that matter, figure out who died first) if both spouses died in a common accident or close in time.
In March of 2014, Bruce died. Jenny filed a probate proceeding and submitted Bruce’s will to the court. Because she filed just two months after Bruce’s death, Larry objected. He argued that she had no authority to take over Bruce’s estate because she had failed to survive him by four months.
Jenny apparently became angry, and revoked her own will. The later evidence was uncontroverted; she personally took her original will and destroyed it, intending to revoke it and to make sure that Larry did not receive any share of her estate.
After consulting with her attorney, Jenny signed a new will (and trust) a few months later (well after she had reached the four-month survivorship requirement). She left her entire estate to her late husband’s grandson — bypassing Larry altogether. She died less than a month after signing the new documents.
Larry contested her new will and trust, arguing that she had been subjected to undue influence in preparing her new documents. The probate court dismissed his complaint, finding that the revocation of her first will was not the product of undue influence. Larry appealed.
The Wisconsin Court of Appeals affirmed the probate court finding, expanding somewhat on the effect of Larry’s first will contest. It was clear, ruled the appellate court, that Jenny was angry with Larry, and that no one influenced her in her decision to revoke the earlier will. Once she destroyed it, she was intestate — that is, she had no will at all — and since Larry was not her child, he would have no right to any share of her estate.
Why would that make a difference? Because if she had no will prior to signing the new documents, Larry had no standing to even challenge those documents. According to the appellate court, his objection to probate of her later will (and trust) would have to be dismissed. Estate of Born, October 6, 2016.
What might Larry have done differently? It seems easy to suggest that the original objection in his father’s estate was probably ill-advised — if his step-mother had actually died in the two months after he raised his objection, he could probably have still made his legal point. In the meantime, he clearly offended her to the point that she changed her estate plan.
This is a balance that potential contestants need to consider in most, if not all, legal proceedings. There are legal victories (and losses) and there are practical losses (and victories). A good lawyer will earnestly discuss the trade-offs with clients and potential clients. Will contests are rare — and they are also expensive, and they often lead to unintended consequences.
