A will contest (or a contest of a revocable trust) is a legal challenge to the validity of an estate plan. If the contest is successful, the contested estate plan is invalidated, and the estate assets are distributed as if that estate plan had not been made. The estate assets will then be distributed according to the terms of a prior valid estate plan or, if there is no such prior estate plan, according to the laws governing intestate succession. The contest is thus brought by a person who will receive more under the prior estate plan (or under the laws governing intestate succession, as the case may be) than he or she would receive under the estate plan he or she is contesting. The contest must be brought after death; it cannot be brought during the lifetime of the person whose estate is in question.
There are two primary grounds on which an estate plan can be contested: (1) lack of testamentary capacity; and (2) undue influence. Because a person whose mental faculties are slipping tends to be vulnerable to undue influence, will contests often allege both that the decedent lacked testamentary capacity and also that the estate plan was the product of undue influence.
Testamentary capacity is the mental capacity to form a valid estate plan. To possess testamentary capacity, one must (a) be able to identify one’s closest living relatives; (b) be able to identify one’s assets; and (c) understand what one is doing when signing the estate plan. It is immaterial that the decedent may have suffered from one or more diagnosed mental disorders. Indeed, even a conservatee (a person whom a court has determined is unable to manage his or her own financial affairs) may nonetheless possess testamentary capacity if he or she passes this three-part test. What matters is that the decedent knew his or her closest living relatives (whether or not those relatives are actually beneficiaries of the estate plan), knew the extent of his or her property, and understood what he or she was doing when he or she signed the estate plan.
An estate plan is the product of undue influence if it reflects the “will” of the perpetrator rather than the desires of the decedent. The perpetrator must have exerted such influence over the decedent that the estate plan does not dispose of the decedent’s property in the manner that he or she truly wanted.
The burden of proving undue influence or lack of testamentary capacity is generally on the contestant. However, where the alleged perpetrator held a position of trust and confidence with respect to the decedent, the burden of proof can sometimes shift to the perpetrator to show that he or she did not exert undue influence.
It is worth noting that a third ground for contesting a will is that the will was not signed in accordance with the strict formalities that are required by law. However, Utah has enacted a substantial compliance statute that makes it much less likely that a contest would prevail on these grounds.
Historically, no contest clauses have been included in wills and revocable trusts in order to discourage contests. A typical no contest clause would disinherit anyone who brings a contest. In Utah, however, no contest clauses are generally not enforceable; they are enforceable only against persons who bring contests without probable cause, i.e. frivolous contests.
For a discussion of estate planning and probate issues in Utah, see “Basic Estate Planning Information” on this website.
Rust Tippett is the author of this blog post.
Copyright 2012 UNLEPI, LLC, a Utah limited liability company. All Rights Reserved.
This blog post in no way creates an attorney-client relationship between the reader and either Robert S. (Rust) Tippett or Bennett Tueller Johnson & Deere, LLC. The reader should consult with his or her own estate planning attorney regarding his or her particular circumstances.