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Clemenza Concierge

Wills, trusts and inheritances

The will doesn't sound like the person who signed it

She was clear for decades about what she wanted. Then, in the last year of her life, when she was ill and relying on one person for almost everything, a new will appeared that left that person nearly all of it. You aren't being greedy for asking whether the document reflects what she actually wanted.

Challenging a will is called a will contest. We look at will contests where the estate is large enough for a challenge to make sense, and it helps to understand the ground before you decide whether to walk onto it.

Tell us what happened

Who is allowed to challenge a will

Generally, only people who would receive more if the will were set aside can challenge it: for example, close relatives who would inherit if there were no will, or people named in an earlier will. A friend who simply thinks the will is unfair usually can't. The exact rules depend on the state.

The usual reasons a will is set aside

Courts don't set aside a properly signed will lightly, and who has to prove what depends on the state. The common grounds are:

  • The person lacked the mental ability to make a will when they signed it: they didn't understand, in broad terms, what they owned, who their family was, and what the will did.
  • Undue influence: someone close to them used pressure or control to replace the person's wishes with their own, beyond ordinary persuasion.
  • Fraud: the person was lied to about the document or about facts that shaped it.
  • The will wasn't signed and witnessed the way the state's law requires.

What evidence tends to matter

Medical records from around the signing often matter most on mental ability. For undue influence, the story around the signing matters: who found the lawyer, who was in the room, whether the person was isolated from family, and how sharply the new will departed from earlier ones. The drafting lawyer and the signing witnesses are often key witnesses themselves.

Think before you act

A will contest can be long, costly and painful, and if the will contains a no-contest clause (one that takes away your gift if you challenge the will), a failed challenge could leave you worse off. In some states you can ask for information, such as the drafting lawyer's testimony, before deciding whether to file.

What helps to have ready

  • The will you're concerned about, and any earlier wills you know of.
  • Any court papers or notice about the will being filed.
  • What you know about the size of the estate: property, accounts, investments.
  • What you know about the person's health, medication and memory near the signing.
  • Who helped arrange the new will, and who stood to gain from it.
  • Letters, cards, messages or recordings of what the person said they wanted.
  • Names of doctors, caregivers and friends who saw the person in that period.

Where we fit in

A lawyer at our firm looks at your case. If we take it and another firm is better placed to lead it day to day, we choose that firm from firms we have vetted for their expertise and track record, and we stay responsible for your case with them.

Questions people ask

The will hasn't been filed with the court yet. Can I do anything?

Often the first step is to wait for it to be filed, or to ask the court to require it. Some states let people who may have an interest ask to be notified.

Can I challenge a trust the same way?

Often, yes, on similar grounds, but the procedure and the time limits can differ, and trust challenges sometimes have to be brought quickly after a notice is sent. Mention the trust in your inquiry.

Does it matter that my parent was old or had dementia?

It matters, but neither age nor a diagnosis alone decides the question. What counts is the person's state of mind when the will was signed.

More about wills, trusts and inheritances

This page explains things in general terms. It is not legal advice about your situation, and the law differs from state to state.