Challenging a will before death

Family Law|December 20th 2015

Wills left behind by the dearly departed sometimes can disappoint friends and relatives. Perhaps the deceased person gave everything to one child and nothing to another, or they decided to leave their money to charity instead of their spouse.

When such contentious bequests are made, it is not uncommon for the will to be disputed. But what if family members discover the contents of a will before the person dies and want to contest it there and then?

In some American states there is a mechanism to do just that. In Alaska, Arkansas, Delaware, Nevada, North Dakota, and Ohio, people can legally challenge the contents of someone’s will while they are still alive.

In each of these states, the court will inform all named beneficiaries of a will of its contents, as well as family members who have been left out. The parties then each have a limited time in which they are able to challenge the will. If they fail to begin proceedings before the deadline, they will not be allowed to take any legal action once the person who made the will has died.

It certainly is an interesting way to approach the amount of litigation surrounding wills and estates. However, there are problems. If the person making the will wishes to make any changes to it, the whole process begins again, thereby creating the potential for numerous challenges to the same document over the course of someone’s life.

Another possible issue with a pre-death challenge is the question of jurisdiction across state lines. What if a person’s will is challenged while they live in one state, and then they move to another where such challenges are not allowed?

There is nothing comparable in English law, although certain people can challenge a deceased person’s estate. Additionally, the test for mental capacity to make a will requires the will maker to appreciate the expectations of their close friends and family. However, the law in certain parts of America has gone too far.

By allowing others to see and challenge a will during someone’s lifetime there is the likelihood that people will take into account factors or people they wouldn’t otherwise, and that erodes a person’s freedom of choice. Yes, it does help guard against people exploiting the vulnerable, but such cases are few and far between.  Enabling challenges to a person’s will to be made during their lifetime will have a far greater effect.

Author: Duncan Watson

Duncan was a solicitor who worked across the Stowe Family Law’s Harrogate, Wetherby, and Leeds offices. He advised clients on wills, estate administration, probate, tax, trusts and lasting powers of attorney. He has written several articles in legal publications and is a contributing author to a forthcoming legal textbook.

Comments(3)

  1. Andrew says:

    What an appalling practice. It’s bad enough that the Act of 1975 admits challenges from people who ahd no claim in the lifetime of the deceased (cohabitees, adult children, people whom the decased was maintaining). This is a bridge very much too far.

  2. Name Witheld says:

    I don’t think ity is an appalling practice at all. My mother in law has substantial assets. Until recently he will was that all of her asets should be divided equally between her son (my brother in law) and her daughter (my wife). However, since she made that will we have had a son, her first and only grandchild, who is now 18 months old. She has now made a new will in which her son receives 50%, my wife receives 25% and our sone receives 25%. there is also provision that if there are further children my wifes “half” will befirther equally divided. Of course if any children are still minors their inheritance is to be held in trust until aged 21. If the brother in law has children then a similar division will take place. On the face of it thats seems fair. However, this means that my wife and my brother in law are being treated differently, because he does not yet have children.

    Lets say the current situation remains the same until after her death. So my brother in law will get 50% my wife 25% and our son 25% in trust. Then the brother in law has children. He still gets 50% to do with as he wishes and his children get nothing unless he gives it to them or leaves to them upon his death.

    Another scenario is that we have more children after her death, who will receive nothing. The potential for fall outs a feuds is huge. For example, The cousins born to the brother after her death could be resentful of our children who have money held in trust whilst they do not or even between siblings born after the death of their grandmother.

    It also means that my son will receive a considerable amount of money at age 21. As a father i do not wish that to happen for a number of reasons. For example at that age he may be financially irresponsible, buy a fast car that he would otheriwse be unable to afford and kill himself within a fortnight or he may get in with the wrong crowd and become a drug user. he will then have a considerable amount of money with which to blow on drugs and perhaps kill himself with or just go on a spending spree because he is immature, as many 21 year olds are. It also undermines the provisions we have made for him in our wills and the reasons we have made those provisions as parents.

    Let’s say whilst my son is still a minor and after his grandmothers death, I too die. My wife falls on hard times due to being unable to work in order to care for our son, but has much less money to provide for our son then her childless brother has. It takes no genius to work out that a single widowed parent needs more money than a single childless man. The 50% would be sufficient to provide a roof over their heads, whilst 25% would not.

    It also creates the potential for worry on our part as parents, particularl;y if we recognise that he is financially immature and whilst in usual circumstances protecting him from himself would be an easier proposition, whereas although he is only 18 months old, I feel my authority as his father has been undermined by the will of his grandmother.

    Whilst I am sure that the will has been made out of love and a wish to be fair and that the above are all unintended consequences, the reality is that it has the potential to create a real mess and splits within a family whereas a simple 50/50 split as originally intended would not.

    If it was at all possible to challenge the will during her lifetime, then that is something I would welcome. I am also wondering whether it is at all possible for me to forbid such a trust being made in favour of my son whilst he is a minor.

    • Andrew says:

      If I were your mother-in-law and knew your feelings I would leave half to your brother-in-law and half to the proverbial cats’ home. That would solve your worries about your son inheriting too much too soon.

      What you say reinforces my view that adults of sound mind should enjoy testamentary freedom.

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