Knowing When To Quit: Voiding A Last Will And Testament Is An Arduous And Painful Task

Knowing When To Quit: Voiding A Last Will And Testament Is An Arduous And Painful Task

In order to contest a last will and testament one must have standing. Depending on state probate laws, an “objecting party” to a last will may be next-of-kin as designated by statute or a beneficiary under a previously executed last will. Practically upon passing, a decedent’s closest relatives are notified of a proffered last will at the behest of the probate court and given the opportunity to either consent to the document’s terms or investigate the circumstances under which it was executed.

State statutes differ on the time one has to file an objection to a last will, with some jurisdictions limiting the period to only a few months. Objections are based on testamentary capacity, undue influence, fraud, or even the mechanics of the document execution. Anyone looking for a fight, or for some found money, can pick apart a last will to find something seemingly imperfect to challenge. Perhaps the ink color throughout the document varies or the witnesses signatures appear suspect. It is difficult, however, to prove that such issues are enough to overturn the terms of a last will. Probate courts are generally deferential to decedents and often every effort is given to find a way to honor the terms of a proposed will, including the executor nomination.

For objecting parties, it is difficult to prove someone’s capacity at the specific moment of a will signing that may have been held several years ago. This is especially the case in states where the requirement for testamentary capacity is low and all it takes for a proper execution is a moment of lucidity. Invalidating a last will by arguing lack of due execution is ill advised when the document was signed in the presence of an attorney, when there is usually a presumption that it was signed properly in presence of counsel. Proving undue influence is an arduous task as the objecting party must rely on circumstantial evidence to demonstrate that an individual asserted influence or duress onto the testatrix in order to alter the testamentary plan. This means discovering diaries and interviewing neighbors and friends to figure out the nature and extent of any improper behavior. Fraud is even more trying wherein one must demonstrate that a fraud was asserted onto the testatrix, for example showing that she did not believe the document she was signing was actually a last will and testament.

Whether fueled by emotion or money, it is not uncommon for relatives close and distant to challenge, or at least investigate, the possibility of voiding a will. Cases where relatives of the same degree are treated disparately — for example, the disinheritance of some but not all children — are more compelling than the second cousin once removed who last saw the testatrix decades prior. Given the tremendous toll a will contest takes on the proponent of the document, the beneficiaries and the objecting parties, settlement is encouraged and often sought. Unlike cases in other fields of laws, often the opponents are relatives, making settlement emotional and complicated, especially because the individual at the center of the conflict is deceased.

As with any contentious lawsuit, especially those in the family sphere, withdrawal of claims or  settlement at the right time is critical. After a spirited foray into Tennessee probate court, three disinherited sons of Glen Campbell have recently withdrawn their objections to two last wills of the late county icon who died in late 2017. The contested wills were dated 2001 and 2006. Campbell’s sons from his first marriage questioned his testamentary capacity as he was afflicted with Alzheimer’s disease for several years before his passing.

Unsurprisingly, the three objecting parties — William Campbell, Kelli Campbell, and Wesley Campbell — were at odds with the decedent’s widow and wife of 34 years, Kimberly Campbell, who is not their mother. Their half-siblings, children of the decedent’s marriage to Kimberly, were included in the last will. It is reported that Campbell’s estate, once thought to be valued at more than $4,000,000, is now estimated at $400,000. Prior to the withdrawal of the action, the Estate’s fiduciary filed a petition for additional powers to assist in the valuation of the Rhinestone Cowboy’s assets. Astutely, the fiduciary pleaded that the pending will contest hindered the progress of the estate administration.

In evaluating whether or not to contest a will, upon learning of a disinheritance, it is imperative to assess the potential for significant emotional and monetary distress. Answers to questions may never be answered and closure may be impossible given the decedent’s inability to speak. Given the tremendous burden an objecting party bears in voiding a last will it may be wise to take the advice of another country super star, Kenny Rogers, and “know when to hold ’em, when to fold ’em and when to walk away.”


Cori A. Robinson is a solo practitioner having founded Cori A. Robinson PLLC, a New York and New Jersey law firm, in 2017. For more than a decade Cori has focused her law practice on trusts and estates and elder law including estate and Medicaid planning, probate and administration, estate litigation, and guardianships. She can be reached at cori@robinsonestatelaw.com

Published at Tue, 27 Nov 2018 17:13:16 +0000

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