By Robert M. Schartz

Thanks to the aging population, an estimated 59 trillion dollars in wealth will be passed down to millennial children and heirs by the year 2030, making millennials the richest generation in American History. The vast majority of this wealth will be transferred through wills and trusts. Many people believe that if a person has a will it is the last word on how their property and possessions will be transferred. An heir or beneficiary may, however, contest the validity of the will. The two most common attacks are (1)that the person making the will, also known as the testator, did not have the mental capacity to make a will and (2) that the testator was unduly influenced when the will was made.

Mental Capacity. A person has the mental capacity to make a will if he or she: (1) knows a will is being made; (2) knows the kind and extent of his or her property; (3) is able to identify and remember the persons to whom he or she would naturally give their property to; and (4) knows how he or she wants to distribute his or her property. A will is valid if the testator meets these criteria even if their mental or physical powers may be impaired. If the testator, or someone in his or her family, believes there may be a will contest because of diminished mental capacity, the attorney should be made aware, so that special precautions can be taken when the will is signed.

Undue Influence. In order to establish undue influence, it must be proven: (1) that when the will was executed, the testator was susceptible to undue influence; (2) the person receiving the improper share had the opportunity to exercise influence and carry out this influence for a wrongful purpose; (3) that the person receiving the improper share was inclined to influence the testator unduly for that purpose; and (4) the resulting bequest was clearly brought about by this undue influence.

Courts presume that the testator was free of undue influence, but this is probably the most frequent area on which a will is attacked. Undue influence comes about when a person substitutes his or her intentions for those of the testator. In these cases, the will sets forth the wishes of the influencer instead of the true intentions of the testator. The undue influence must be present at the very time that the will is being signed. That does not mean that the influencer is present when the will is signed, but rather that the testator is actively under that influence and distributes his or her property based on the intentions of the influencer.

Unfortunately, will contests sometimes take on the acrimony of a divorce. Hurt feelings or a perceived slight from decades ago may become a central part of a will contest. It becomes crucially important to retain an attorney with the necessary experience to steer the matter towards a timely and fair resolution before the assets of the testator are unfairly distributed or are depleted through a lengthy court battle.