APRIL 28, 2014 VOLUME 21 NUMBER 16
We have written before about the fact that, despite popular notions, will contests are actually quite rare. We have explained to our readers that mounting a will contest can be an expensive proposition, and that the likelihood of success is usually slight. Those observations remain true today, but that doesn’t stop family members (and even non-family claimants) from insisting that a loved one’s will is invalid because, well, it just is.
A recent Arizona appellate decision highlights the kind of objections we sometimes see. The case involves the estate of a man we’re going to call Ralph Dobson, who died in 2013.
Ralph had signed a will in 2010, naming his caretaker Margie as personal representative of his estate and his primary beneficiary. He did not name any of his children; an earlier, 2002 will had named his son Barney as personal representative and provided for the division of his estate into equal shares among his children. Margie, in addition to being Ralph’s caretaker, was also Barney’s ex-wife.
Barney objected to the admission of the 2010 will to probate. He argued that it was the product of undue influence, that Ralph had obviously not understood what he was signing (the will even made an error in Ralph’s full legal name), and that the witnesses could not even identify a photo of his father. He represented himself in the probate proceeding, challenged his ex-wife’s witnesses and exhibits, and explained his objections to the probate judge. He did not call any witnesses (other than giving his own testimony).
At the end of the trial in probate court, the judge found the 2010 will was valid and that it revoked the 2002 will. That meant Margie would be personal representative of the estate, and that the estate would go to her under the later will.
Barney appealed. He still represented himself, and he clearly did not understand how the appellate process worked. He attached exhibits to his appeal, apparently thinking the appellate judges would decide for themselves whether Ralph knew what he was doing. His appeals brief did not comply with the rule requirements. Ultimately, the Court of Appeals gave up, ruled that Barney had waived all his arguments and simply affirmed the probate judge’s determination that the 2010 will was Ralph’s final will. Estate of Demaree, April 18, 2014.
As we said, this new case does not break up any unplowed ground. There is nothing profound in the court’s holding, and no greater truth immediately apparent. What it does do, though, is to give us a chance to repeat this notion: will contests are difficult to sustain, they are infrequently filed, and they seldom succeed.
Would Barney have done better if he had hired a lawyer? Probably. We simply don’t have enough information to know whether there were facts to support his position, or whether a lawyer would have been able to ferret them out and produce the evidence the court would need to rule in his favor. We do know, though, that Barney was poorly equipped to see what information was truly relevant and even persuasive, and he did not do a great job of getting the important parts before the probate judge (and, later, the Court of Appeals).
Would a lawyer have been interested in Barney’s case? It’s impossible to be sure based on the record available, but it would not be too surprising if the answer turned out to be “no”.
Here are some of the notions that we often see among family members (which are, we might immediately note, not correct, at least in Arizona):
- A will has to leave something to family members. Not true. You are completely free to disinherit your spouse, your children, even your minor children (caution: this principle is not the same in every state — we are talking here about Arizona). If you do, they might be entitled to a very small portion of your estate anyway — but that does not mean your disinheritance is invalid. You do not even need to name your children, and you certainly do not need to leave them even a nominal amount.
- A will leaving everything to a non-family member is automatically suspect. Not true. While caretakers are often situated so that they are able to exercise undue influence, they are also often in a position to enjoy the genuine gratitude and affection of the person they were caring for. A good lawyer will insist on more information about the relationship before making any assumptions about a will challenge.
- If a family member challenges the will, they will be entitled to receive something. This one is really hard for people to grasp sometimes. If you die without a will, your estate will usually pass to your children and your surviving spouse, in some proportions (it depends, in Arizona, on whether the children are all also your spouse’s children). If your will is invalid, and there is not an earlier will, then you died without a will. So there is simply no reason for your second cousin to want to challenge your will — even if it is completely invalid he will not receive anything from your estate (assuming you have any descendants or closer relatives).
- Lawyers love to challenge wills. Nope, we don’t. It’s hard to do, and success rates are not high. Few lawyers will take on will contests on a contingency fee basis (though some might, depending on the facts) — so that means you’ll be writing checks every month to maintain any will contest, too.
- When it’s obvious to everyone in the family that undue influence was exerted, that will be enough to challenge the will. Nope. The burden of proving undue influence is usually on the person challenging the will, and they have to show clear and convincing evidence of the undue influence. There is a rule that reverses the burden of proof in some cases, but it is not automatically triggered, and it’s not all that clear that it changes much about the requirements for challenging a will.
- If the family can show that mom (or dad) was confused and disoriented, that will be all that it takes to defeat the will. Not at all. People with marginal capacity (or even largely incapacitated adults) may well be able to sign a will. All they have to have is the ability to identify at least some family members, to recognize that they have assets, and to understand that a will operates to pass assets at death. That’s not a very high barrier. And there’s something in the law called the “lucid moment” concept: people are presumed to be able to have a lucid moment even in a heavily foggy patch.
The lesson here: if you believe a spouse or parent was unduly influenced, you need to get good legal advice right away. Expect to pay for it — but if you don’t get counsel, you are much more likely to end up in the same position as Barney.