Contesting a Will

[Stella9999]

Jurisdiction

Wisconsin

Hello all.

My grandfather was fairly wealthy and passed in July. He had 3 sons, one of which was my father. My father passed in 2018. Before my father passed a previous version of my Grandfathers will stated that his assets would be split equally amongst the brothers and if they were deceased it would go to their children.
6 months after my father passed the will was changed to completely disclude my father or any of us children. My father was 95, in an assisted living home and suffered from dementia. I believe there was some coercion by one of my dads brothers to cut out my dad and any previous provision for his children therefore giving them a larger share. How hard would it be to contest the will? We would have to prove undue influence and mental incapacity?
Thank you in advance

 

[adjusterjack]

Your grandfather changed his will after your father died. Makes sense.

I believe there was some coercion by one of my dads brothers to cut out my dad and any previous provision for his children therefore giving them a larger share.

You "believe"? "Believe" doesn't butter any parsnips.

What can you "prove"? With "evidence."

How hard would it be to contest the will?

Very hard. And very expensive. The more wealthy your grandfather was, the higher the stakes and the more it will cost. Think tens of thousands.

We would have to prove undue influence and mental incapacity?

Yes.

How do you think you would accomplish that "proof"?

 

[Tax Counsel]

Hello all.
My father was 95, in an assisted living home and suffered from dementia.

I assume you mean that your grandfather was 95 and suffered from dementia.

How hard would it be to contest the will? We would have to prove undue influence and mental incapacity?

That depends on the grounds you choose for the will contest and what evidence you have. Contests based on undue influence in this kind of situation are difficult to make. Your father's siblings are free to talk to their Dad and propose whatever changes they want him to make to his will. It is not all that unusual that people want their stuff to first go to their kids; I've had clients who, if one child dies wants their stuff to be split among their remaining kids and not go to kids of the deceased child. So this change is not itself highly suspect. Your grandfather would still have had the power to decide to accept or reject the changes the siblings wanted. You'd have to prove that they exerted an undue amount of influence here. That can be hard to do without proof of exactly what they did to influence him. If all you have is that he was old, has dementia, and that the will was changed, that alone won't get you there. Note that just saying he had dementia does not tell me much. There are varying degrees and types of dementia. One might be in the early stages of dementia and still be quite competent at most things, after all.

If his dementia was advanced enough that he would be legally incompetent then you'd have an easier time getting the will tossed out on lack of capacity.

You really need to discuss it with a probate lawyer in the state where the probate is taking place. The lawyer can review the evidence you have and tell you what more would be needed to get in discovery to make a good case, what your chances are of succeeding, and what the will contest would cost you to pursue.

 

[justblue]

Hello all.

My grandfather was fairly wealthy and passed in July. He had 3 sons, one of which was my father. My father passed in 2018. Before my father passed a previous version of my Grandfathers will stated that his assets would be split equally amongst the brothers and if they were deceased it would go to their children.
6 months after my father passed the will was changed to completely disclude my father or any of us children. My father was 95, in an assisted living home and suffered from dementia. I believe there was some coercion by one of my dads brothers to cut out my dad and any previous provision for his children therefore giving them a larger share. How hard would it be to contest the will? We would have to prove undue influence and mental incapacity?
Thank you in advance

How do you know what the previous will stated? Did you read it? If so, how did you come to read it? Did your grandfather give it to you to read?

 

[Stella9999]

I assume you mean that your grandfather was 95 and suffered from dementia.



That depends on the grounds you choose for the will contest and what evidence you have. Contests based on undue influence in this kind of situation are difficult to make. Your father's siblings are free to talk to their Dad and propose whatever changes they want him to make to his will. It is not all that unusual that people want their stuff to first go to their kids; I've had clients who, if one child dies wants their stuff to be split among their remaining kids and not go to kids of the deceased child. So this change is not itself highly suspect. Your grandfather would still have had the power to decide to accept or reject the changes the siblings wanted. You'd have to prove that they exerted an undue amount of influence here. That can be hard to do without proof of exactly what they did to influence him. If all you have is that he was old, has dementia, and that the will was changed, that alone won't get you there. Note that just saying he had dementia does not tell me much. There are varying degrees and types of dementia. One might be in the early stages of dementia and still be quite competent at most things, after all.

If his dementia was advanced enough that he would be legally incompetent then you'd have an easier time getting the will tossed out on lack of capacity.

You really need to discuss it with a probate lawyer in the state where the probate is taking place. The lawyer can review the evidence you have and tell you what more would be needed to get in discovery to make a good case, what your chances are of succeeding, and what the will contest would cost you to pursue.

Thank you for your advice. I was on the fence about whether I should even have a lawyer take a look at it or not. I guess I don't know his exact medical state or advancement of his dementia. From what I understand testamentary incompetency is extremely hard to prove.

 

[Stella9999]

No. I apologize I did not personally see it. My father saw before he passed

 

[Tax Counsel]

Thank you for your advice. I was on the fence about whether I should even have a lawyer take a look at it or not.

Have a lawyer take a look at it. You have nothing to lose but a little of your time by doing that. Most lawyers will give you a free initial consultation, and that should be enough for you to find out if you've got something to pursue. The lawyer can look to see if there are any good challenges to the will, too, that perhaps you haven't spotted or were not aware of.

I guess I don't know his exact medical state or advancement of his dementia. From what I understand testamentary incompetency is extremely hard to prove.

How hard incompetency is to prove just depends on how advanced his dementia was and what evidence there is to support it. The standard for competency to make will is not very high, so you do have the challenge to show that his cognitive abilities were pretty diminished. You may need to get testimony from those that had regular contact with your grandfather (like caregivers, etc) around the time the will as to his cognitive state and get medical records, etc, too.

If a lawyer assisted your grandfather in making the new will, the lawyer may well have taken steps to document your grandfather's competence at the time of the will execution. That's what I would do with a 95 year old client who has a confirmed diagnosis of dementia. In that case that would mean you'd need to counter the evidence of competence that the lawyer obtained.

 

[zddoodah]

6 months after my father passed the will was changed to completely disclude my father or any of us children. My father was 95, in an assisted living home and suffered from dementia.

I assume you meant to say that, six months after your father's death, your grandfather was 95 and suffered from dementia. Correct?

By the way, do you have a copy (or the original) of the prior will? Sounds like the answer is no. However, that might be an unimportant point. If you can prove the current will invalid, then the prior will would replace it. If neither you nor anyone else has the prior will or a copy of it, then it's likely that the estate would be administered under the intestacy law, which should have the same result as the prior will.

I believe there was some coercion by one of my dads brothers to cut out my dad and any previous provision for his children therefore giving them a larger share. How hard would it be to contest the will?

If you have only a belief that is unsupported by any evidence, it will be impossibly hard. On the other hand, if your grandfather had been diagnosed with dementia and there are medically-qualified witnesses who could testify that, at the time the new will was made, your grandfather was no competent, then it might not be so tough.

We would have to prove undue influence and mental incapacity?

Either would work, and mental incapacity seems much more likely to be provable.

I suggest that you (and whoever else "we" refers to) consult with a local probate attorney so that you can better understand what sort of fight you're in for and how much money you'll have to put up to get things going.