Will Your Beneficiary Challenge Your Will
While counseling my clients, we often hear of the one bad-seed beneficiary who won’t be happy with their share of assets upon my client’s passing. They ask what we can do to protect their estate and other beneficiaries from any possible contest. It’s sad, but there’s always one who doesn’t abide by the old adage: you get what you get and you don’t throw a fit.
As planning attorneys, we always try incorporate every protection for our clients but at the end of the day, anyone can challenge anything if they have enough money behind them. When we receive a call regarding a Will challenge, the belief is that the will does not match the testator’s actual intent or that the Will is otherwise invalid, meaning that there was undue influence, forgery, fraud or lack of testamentary capacity.
If one of these prove true, we must file a formal objection and will challenge petition. It is imperative that the procedures all followed or else crucial issues may later be barred. What everyone needs to understand is that this process is time-consuming: a marathon, not a sprint. And it’s costly. A Will contest is not for the faint of heart. A Will contest is litigation which means that there will be monthly costs, hearings, etc. in which you must endure. While there is no magic figure to the cost of litigation, it’s dependent upon the facts and parties involved. It could total $10,000 after 6 months or it could take more than a year and exceed $50,000. While the Judge may order that some of your costs are covered by the estate, this is not something that should be counted on.
But not just anyone can bring a challenge. In order to get passed the first hurdle, the person must have “standing”, i.e. a party of interest. Another way to look at it is if the Will is deemed invalid and thrown out, will you be financially better off? If so, you have standing. Keep in mind if a will is thrown out and an older Will exists, the older will may be adhered to. Otherwise, then the Pennsylvania rules of Intestacy will trump.
Claiming that the Will does not reflect the testator’s intent isn’t enough though. We must also prove one of the following, or a combination of: undue influence, duress or coercion, fraud, forgery, lack of capacity, superseded will. Undue Influence is when a person used a position of power to influence the decedent to change the will to benefit the person with power in a way that the decedent would not have otherwise done. Duress arises when the testator’s belief in a threat causes him to make a Will change favoring the threatening person that he would otherwise not make. Fraud is when a beneficiary knowingly used false statements which caused the testator to change the Will to benefit the beneficiary. Forgery means being able to prove someone other than the testator signed the will. Lack of Capacity is when someone believes the testator was not of sound mind when signing the Will.
You do not have forever, though, to contest a Will. You only have through the statute of limitations, even after the will has been probated. A contest is different than a caveat. A caveat is just a minor, first step. A caveat occurs prior to the Will being probated which will prevent the Register of Wills from probating a Will until notifying the Caveator. If after review, the Caveator decides to pursue a Will contest, then the formal procedures must be followed so that nothing is forfeited throughout litigation. The benefit of a Caveat is that the Register of Wills will appoint a neutral party to act as the Administrator during the challenge. The downside is the cost associated with any litigation in front of the Court.
Sometimes people rely on the Forfeiture Clause or In Terrorem clause of the Will which stipulates that if a beneficiary challenges a Will, they are excluded from the Will. Although Pennsylvania recognizes such clauses, the court will not enforce them if they find probable cause for a challenge. The issue becomes one of concern if this clause is added to a Will that excludes the challenger. If this is the case then the challenger has nothing to lose by bringing a challenge.
If you are concerned about a future beneficiary causing problems, call us to make sure that your estate is protected from any unnecessary litigation.