The Law Firm of Bucknam Black Davis PC

Will Contests—How to challenge, and how to avoid

“Standing” is just the first requirement in a successful will contest. The next step is to determine if the testator’s will was executed properly. In Vermont, that means that a testator must sign his/her name in front of two witnesses, who must also witness each other’s signature. The witnesses must satisfy themselves that the testator has testamentary capacity and is not under undue influence. The testator should declare that the will represents his/her wishes regarding his/her assets, and that the testator wants the witnesses to witness his signature, and that of the other witness. Witnesses do not need to know the contents of the will. If the will was executed properly, the contestant must prove that the testator did not have the mental capacity to execute a will, or was under undue influence of someone else when he or she executed the will. A person can be mentally disabled and still execute a will. The test is “testamentary capacity”, which means testators must understand what they are doing when executing the will, have adequate knowledge of what they own, perceive and understand how they want to dispose of the assets, and have an understanding of who will be the beneficiaries of the will.

“Undue influence” means that the testator no longer exercises free will. Suspicious circumstances, such as a sudden change of affection from family members to a stranger, can be an indication of undue influence.

In Vermont, a will contest is initially held in probate court and is a full fledged trial in front of the Probate Judge. If the case is appealed, the appeal is to Superior Court, and there is a new trial–with a jury, if a party requests one. The next appeal would be to the Vermont Supreme Court. So, unlike most other Vermont cases, parties have a chance to try the case twice.

It is often difficult to prove either that the testator lacked testamentary capacity, or was the subject of undue influence. However, a testator will want his or her beneficiaries to avoid a will contest altogether. There are a number of ways a testator can discourage will contests. First, make sure the will adequately provides for disposal of all assets. A residuary clause, which disposes of any assets that were not specifically named in the will, is the means to accomplish that goal. Second, the testator must name all of his or her children, including the ones he/she is not providing for. A child who is not named in the will can take his or her share of the estate, as if there were no will. Next, make sure the will is executed in front of witnesses who have no interest in the will, and that beneficiaries are not present for the execution of the will. In addition, initial or sign every page of the will. Finally, providing something for a testator’s natural heirs in the will, even if it is not as much as the heirs expected, may also discourage will contests.

It is a good idea to have an attorney involved, as the attorney will be able to vouch that the procedure for executing the will was correct; and that the testator had testamentary capacity and was not under undue influence. If the attorney has no financial interest in the estate, his or her opinion will discourage any potential contestants.








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