Wills Week: Contesting a Will

Tuesday, February 5, 2013 • by Sarah Whitman-Salkin

Today we're focusing on one of the foundational elements of the Huguette Clark story: contesting a will. The contentious case surrounding Ms. Clark's estate lies in the dispute over which of the three wills she wrote is the valid will. As we laid out yesterday, Ms. Clark wrote three wills: one in 1929, one in March 2005, and one in April 2005. Though the second and third wills were written within only 6 weeks of each other, and their contents varied greatly, it is clear that Ms. Clark did re-write her will in April 2005. So where's the argument?

When a will is submitted to probate, the court is charged with determining whether or not the will is a valid legal document—that is, whether or not the will is legally binding and was in fact created by the person who it represents (known as the "testator"). This is usually done by a judge simply looking at the document and determining whether or not it meets the state's requirements for a legal will.

But a will can be contested. Even if the judge says that the will looks good, the validity of the will can be challenged.

There are two types of people who can contest a will: people who are named as beneficiaries in the will and people who would be beneficiaries if the will was invalid.

And there are four reasons a will may be argued (and found) to be invalid:

1. The will was incorrectly executed. In other words, the will was not signed according to the legal standards in the state in which it was created. Though each state has its own specific laws detailing the execution (signing) of a will, what this generally means is that the will was either not signed in the presence of two witnesses or was not properly notarized.

2. The will was fraudulently signed. The testator must be aware that she is signing her will when she signs the document. If the testator thought she was signing a check or a new car lease, but was actually signing her will, this would be a case of fraud. Unfortunately, at this point, the testator cannot confirm or deny whether or not she knew she was signing her will, and not some other document. The witnesses to the signing of the will must offer their opinion, and the court will decide based on their testimony.

3. The testator lacked the "testamentary capacity" to sign the will. In order for a will to be valid, the testator must understand the meaning and effect of signing a will. This breaks down into three main understandings: an understanding of the types and amount of assets she has, an understanding of the people who will receive those assets (the beneficiaries), and an understanding of the way that the will distributes those assets to beneficiaries. If the testator did not have the mental capacity to understand these three things, the will may be deemed invalid. The catch here is that simply because someone suffers from mental illness or deterioration (such as dementia), she is not necessarily lacking in testamentary capacity. The court will have to look at the testator's medical records and the testimony of those people who witnessed the signing of the will, and will decide on the testator's mental capacity based on that information.

4. The will was signed under "undue influence." If someone—a friend, caretaker, family member, professional advisor, or beneficiary named in the will—pressured the testator into changing the will, it can be argued that the testator did not freely sign the will. This pressure can take the form of physical intimidation or abuse, or emotional manipulation or abuse. In order to prove this abuse of power, however, the person contesting the will must show evidence of this pressure, such as the presence of the beneficiary influencer at the signing of the will, any role the influencer had in drafting the will, and if the influencer paid for or stored the will for the testator.

Aside from incorrect execution, none of these scenarios are simple to prove in court—given the fact that the testator cannot speak for herself, it is up to the living to speculate and provide supporting evidence. In the case of Ms. Clark's will, her extended family is likely arguing that her attorney, accountant, and nurse exerted undue influence over her, and forced her to sign a will that would benefit them. As the attorney, accountant, and nurse fiercely deny this claim, it will be interesting to see how the family attempts to prove the invalidity of Ms. Clark's will.