This entry talks through typical challenges to a will during the probate process by introducing and exploring some new legislation in another state that may significantly decrease some of those disputes. If it works in the other state, Minnesota could consider following suit. At the very least, it’s an opportunity to examine the probate process and how disputes may arise.
New Hampshire (NH) has a new law that allows someone who creates a will to get judicial “approval” of their will before they pass away, thereby avoiding any disputes over the will after their death. As some of you may know, disputes can arise completely by surprise, or because of certain common “triggers,” like writing another will very shortly before your death, or changing a will to distinctly advantage/disadvantage someone who had not been in an earlier will, or making a will that is not “expected,” like giving everything to charity and nothing to your children. All of these scenarios (and many more!) can give rise to a will challenge. Challenges are costly, time-consuming, and can be quite destructive to family relationships. Check out this August, 2014, article from Seacoast Online, which reports on what the law is trying to address:
“New Granite State estate law designed to end shenanigans,“
These are forward-thinking changes designed to solve some of the time- and money- consuming disputes that can arise in the probate process. If someone challenges the validity of a will, the court has to spend time examining and adjudicating the claims, and the estate and the challenger(s) usually spend a significant amount of money to have those claims adjudicated. If NH indeed solves some of the problems with and challenges to the will during the traditional probate process, many states, I imagine, will consider doing the same thing.
Some of you may be familiar with the most common challenges to a will:
1) The will is not validly executed
Something is wrong with its content or construction. This can be anything from the will lacking a signature or a date, to missing pages, or something scratched out, just to name a few.
2) Undue Influence
A beneficiary is someone who will receive assets from the estate of the person writing the will. A beneficiary exerts extreme influence – through pressure, duress, coercion – so much so that the person writing the will succumbs to that extreme influence and writes a will that benefits that beneficiary in a way that wouldn’t have happened otherwise.
3) Lack of Capacity
The person writing the will no longer understands the nature or value of their assets and possessions and/or does not understand who the people are to whom they may wish to pass those assets and possessions.
4) Fraud.
Basically, tricking someone into signing a will.
You can imagine, if the Judge during the Probate process was able to speak with the person who wrote the will and has now passed away, that person could straighten a few things out with their testimony. But, absent a state figuring out how to do that (!), courts are left with adjudicating these claims based on evidence presented from both sides of the dispute, trying to determine what happened and why. NH is trying to get in front of these challenges by allowing someone who thinks there may be a dispute regarding their will to bring the will to a probate court Judge and testify on the very things the Judge would want to ask but would not be able to. If the Judge finds that the will is properly executed and its creator has capacity to write the will, the court signs off and removes the possibility of challenges after the death of the person who wrote it.
Since Minnesota doesn’t have such a law right now, I encourage those who are considering writing or re-writing their wills to speak with an attorney experienced in Estate Planning and Probate. They can assist you in identifying issues that may create challenges to your will, and they may have ways to avoid the conflicts altogether or suggestions for addressing them.
This blog is written by Bridget-Michaele Reischl, Attorney DECORO LAW OFFICE, PLLC www.decorolaw.comALL READERS: This blog is not, nor shall it be deemed to be, legal advice or counsel. This blog does not create an attorney-client relationship with any reader. It is designed to encourage thoughtful consideration of important legal issues with the expectation that readers will seek professional advice from a licensed attorney.
Contact Bridget-Michaele Reischl at: DECORO LAW OFFICE, PLLC 6 West 5th Street, Suite 800-D Saint Paul, MN 55102 (651)-321-3058 bridget@decorolaw.com