Berman & Asbel, LLP

Protecting your will and other documents from potential challenge by angry relatives

Previously, I described some steps that individuals can take to provide rights and protections to their same-sex partner or other person who cannot be recognized as a spouse under Pennsylvania law.  Perhaps you have created such documents naming a friend, or a favorite charity as a beneficiary.  OK, so you have been to see your attorney and working with your attorney, you have had a set of documents drawn up that will give your partner, friend or favorite charity various rights to receive property or, in the case of individuals, to have access to you in the hospital or to make medical decisions on your behalf.   You have made these decisions and have excluded your parents, siblings, children or other close family members because this is how you want to do things.  You are of sound mind and you know you have the right to make these choices so no one can challenge them right?  Actually, wrong.

It is a fact of life in the legal world that pretty much anyone can file anything to sue someone or challenge something even if the merits of the case make it unlikely they will win in the end.  So if you are worried that your relatives will be upset about your choices and will try to challenge them, what can you do?

First, let's understand what are the reasons that a document like a will or a trust could be challenged.  The law provides a very strong presumption that if a will meets the basic requirements of being in writing, signed by the testator making the will and is also signed by two adult witnesses, it is presumed to be valid.  Somebody wanting to challenge the validity of the document has a heavy burden of proof to convince the court why it should not be valid.

The first major category of challenge would be to attempt to prove that the testator (person whose will it is) lacked testamentary capacity.  The law presumes that every adult has testamentary capacity which means having "an intelligent knowledge regarding the natural objects of his bounty, the general composition of his estate, and what he desires done with it, even though his memory may have been impaired by age or disease." (rule stated in a Pennsylvania Supreme Court case called In re Brantlinger's Estate, 418 Pa. 236, 210 A.2d 246 (1965).

Put simply, testamentary capacity means that a person understands who are the persons to whom one would generally most likely expect to give their assets - spouse, children, parents, siblings etc.; the person understands what he or she owns - in general (does not have to be down to small details) and what he or she actually wants to do with it.  A challenger has to show that the person who signed the will did not even have that basic capacity.  It is not enough to show that the person was elderly or ill.  The burden of proof (clear and convincing evidence) is quite high - not as high as beyond reasonable doubt like in a criminal case but higher than in a regular civil case.

The other path to challenge a will or trust is for the challenger to prove - again by clear and convincing evidence - that the will or trust was the product of undue influence.  To prove undue influence, the challenge must show three things:  1) that the person who signed the will or trust was in a mentally weakened state due to a physical or mental disease or condition; 2) that there was a person who was in a close position to be trusted by the person who made the will or trust (a "confidential relationship"); and 3) that the person who had this confidential relationship with the person who signed the will received some sort of substantial benefit in the will or trust.  

If the challenger proves these three elements meeting the high burden of proof, then the burden of proof shifts to the person promoting the will or trust to show that there was in fact no undue influence.

These challenges are not easy to win but they do happen and they can be expensive to defend against.   So what can you do if you are worried that your relatives might try to challenge your carefully made plans?  There are several steps you can choose.

•Discuss plans openly with family.  Open communication can help head off future disputes.  In some families this will work but, of course, in others it will not so other tactics may be necessary.

•In your will or trust, or in a separate document, provide an explanation as to why you are including or excluding certain people. 

•Video - some people go so far as to make a video recording of the will signing and of the testator explaining their decision so that in the event of a future challenge, not only can the words be heard but one can see their expression and demeanor.

•Have a meeting alone with the attorney - it is very common for couples to meet together with an attorney when having their wills or trusts prepared.  If, however, you schedule a meeting alone with the attorney, the attorney has an opportunity to discuss the plan without the partner present.  This may then enable the attorney, if he or she later becomes a witness in a challenge, to be able to testify about meeting with the testator alone and discussing the matter without the other partner present.

•Obtain a medical report from a personal physician at about the time these documents are being signed.  The medical evidence in challenges to wills and trusts often involves going back and making a determination based on medical records generated at about the time the document was created.  A specific report by a doctor attesting to the health and mental soundness of the testator can potentially deter a challenge later.

•Give limited gifts to relatives and use in terrorem clauses.  This is an interesting strategy that uses a carrot and a stick.  For example, a person might want to leave almost all of their estate to their partner but gives a conditional gift to a parent, child or other family member.  The condition, or in terrorem provision states that in the event that anyone attempts to legally challenge the will or trust, the gift is revoked and for purposes of interpreting the document, the challenger shall be deemed to have died before the testator.  This can be a strong stick to deter a challenge and it can also provide further evidence to the court of the resolve that the testator had when making this decision.

Readers should not solely rely on this note for planning but should consult with a competent attorney licensed in their state. You can also find more information in my firm's websites on Family Law and Wills and Estate Planning and Administration.

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