One of the things that brings people to a lawyer is disagreements over Mama’s Last Will and Testament. One sibling looks at the division of assets that Mama made in her Will, and SEES RED!!! The first thing that occurs to the disgruntled child is “why in the world would Mama put that in her Will, when she knew that I wanted the farm?” The next thing that occurs to the disgruntled child is “Mama would never do that—so this Will must not be valid!”
When we hear this fact pattern, we tell our clients that there are some specific reasons which will cause a Court to overturn a Will, in a process known as a “caveat.” The facts of the case need to be sufficient to convince a jury of one of four things:
(1) Mama was not mentally competent when she signed her “Will.” Lack of mental competence is not shown by having the disgruntled child testify that “Mama would never do that if she was in her right mind.” There must be some medical evidence that Mama was suffering from advanced dementia, or was under the influence of heavy narcotics, or had some other condition that rendered her incapable of thinking straight. The fact that one child, or two children, or three children, don’t like what Mama did is insufficient evidence that Mama was incompetent when she signed her Will.
(2) Mama was defrauded. Fraud might be shown if the disgruntled child can convince a jury that Mama thought she was signing a Christmas card, but instead it turned out to be her Last Will and Testament. This one is difficult to show. I haven’t ever seen a “Will” signed as the result of fraud.
(3) Mama was under duress when she signed her “Will.” The duress which the disgruntled child needs to show must rise above the level of forcing Mama to make an unwanted choice. When one child says to Mama, “if you don’t leave the farm to me, I’m leaving and I am taking your grandchildren with me!” and Mama subsequently changes her “Will” to leave the farm to that child, then absent some other factors, telling Mama that she has to make that choice, doesn’t rise to the level of duress. Mama just made a choice about who should get the farm, based on one child’s threat to leave home if that child didn’t get the farm. No matter how reprehensible we consider that child’s behavior, Mama was not put under duress—she just had to make a choice. To overturn a “Will” based on duress, the disgruntled child needs to show that the evil sibling twisted Mama’s arm, or threatened to expose Mama’s past infidelity, or otherwise took some action that put Mama in fear of some harm.
(4) Mama was under undue influence when she signed her “Will.” This is the factor that seems to be most used, particularly when combined with one or more of the other three. To make undue influence stick, the disgruntled child needs to show that the evil child exerted so much influence over Mama that he/she was able to overcome Mama’s resistance and cause Mama to do something that Mama would never have done otherwise. The classic case here is when the evil child takes over Mama’s end of life care, and won’t let the other siblings even visit Mama for years before Mama’s death. During which time, you guessed it, the evil child makes Mama write out a new “Will” leaving the farm to the evil child.
The takeaway from this should be that it is difficult to overturn someone’s Last Will and Testament. When you think about it, it ought to be difficult to overturn another person’s Will. We as a society have determined that each of us should be free to dispose of our property, at our death, as we choose. What you think Mama should do, or what I think Mama should do, is irrelevant—Mama should be free to make her own choices.
When you are ready to make your own choices, come and see us at the Law Offices of W. Woods Doster. Please call 919-842-5007 and ask our office manager, Michele Shaw, to make you an appointment to prepare your Will.