“In Terrorem” Provision Does Not Violate Public Policy
OCTOBER 1, 2012 VOLUME 19 NUMBER 36 From time to time we have written about what lawyers usually call “in terrorem” provisions in wills and trusts. They are perhaps better known as “no-contest” clauses, and they are intended to prevent will (or trust) contests after the death of the signer. Typically, they say something like: […]
Claimant Must Prove Undue Influence, Lack of Capacity
AUGUST 27, 2012 VOLUME 19 NUMBER 33 It has been some time since we wrote about the concepts of undue influence and lack of testamentary capacity — and the differences between these two legal concepts. A recent Minnesota appellate case strikes us as a good opportunity to revisit challenges to wills and trusts based on […]
Guardianship May Suggest Lack of Testamentary Capacity
MARCH 19, 2012 VOLUME 19 NUMBER 11 Can a person under guardianship sign a new will? After all, in order to have a guardian appointed (in Arizona, at least), the court must first have found that the person is impaired by a mental disorder (or some other cause) and that he or she “lacks sufficient […]
Paternity Testing Allows Unacknowledged Son to Share in Estate
NOVEMBER 21, 2011 VOLUME 18 NUMBER 40 Paternity testing has come a long way in the last few decades. You might reasonably think that it is now so easy to establish parentage that probate court disputes about the subject would be largely a thing of the past. If you thought that, you’d be wrong. Just […]
Despite the Lawyers’ Best Efforts Heirs May Contest Estate Plan
NOVEMBER 22, 2010 VOLUME 17 NUMBER 36 Our clients usually have similar goals in their estate planning. They want to take care of their children. They may want to leave something to charity. They usually want to minimize taxes that they, their estate or their beneficiaries might have to pay. And they often tell us […]
In Rare Challenge, Court Finds Revocation of Will Effective
FEBRUARY 22, 2010 VOLUME 17, NUMBER 6 The popular conception of the probate process and the making of wills is colored by misinformation from a number of sources. Movies, books and plays provide much of the misunderstanding, building an expectation of “the reading of the will” in a lawyer’s office (it just doesn’t happen), regular […]
Court Distinguishes Between Undue Influence, Incapacity
DECEMBER 28 , 2009 VOLUME 16, NUMBER 66 Contrary to public perceptions, will contests are actually rare. In fact, few wills are written in such a way that anyone would benefit from a contest — most wills leave property to the same people who would inherit if there was no will. When there is a […]
Should There Be An In Terrorem Clause in Your Will or Trust?
AUGUST 3, 2009 VOLUME 16, NUMBER 49 You would like to make sure that your children get along after you are no longer around to tell them to behave, wouldn’t you? Although you may not anticipate any disagreements, you know that money can change relationships, and you have seen how the death of a parent […]
Lawyer Who Drafted Contested Will Sued After Case Settles
NOVEMBER 27, 2006 VOLUME 14, NUMBER 22 Laura Carnese had suffered a stroke, and (as it turned out) had only a few weeks to live. A friend and relative by marriage, Charles Carnese, happened to be a lawyer; he arranged for a former associate, attorney Anthony J. Barker, to visit with Ms. Carnese and help […]
Wills Usually Are Valid, and Not All Family Influence is “Undue”
JUNE 23, 2003 VOLUME 10, NUMBER 51 Occasionally a successful and colorful will contest is profiled in Elder Law Issues. EL Issues reported in 1996 that Dorothy Killen’s will was deemed invalid in an Arizona court due to Ms. Killen’s “’insane delusions’” about her truly kind relatives she believed to be Mafia killers. (May 27, […]
