Can a will drawn after death be contested? 28 Answers as of May 28, 2013

Uncle passes with will stating percentages fairly going to both sides of family. They have no children. After uncle passes, 90-year old aunt is coerced into changing will so that everything goes to only her side of family. They made it very clear in uncle’s will what they wanted.

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Victor Varga | Victor Varga
A will cannot be changed once the person dies, so yes, it can be contested.
Answer Applies to: Maryland
Replied: 9/21/2012
Law Offices of Gerald A. Bagazinski
Law Offices of Gerald A. Bagazinski | Gerald A. Bagazinski
If the aunt is still living, get an attorney. If the aunt is dead, get an attorney to file a will contest alleging undue influence and coercion.
Answer Applies to: Michigan
Replied: 9/14/2012
Law Office of Patricia A. Simmons
Law Office of Patricia A. Simmons | Patrica A Simmons
Do you have first hand knowledge that your uncle's will was altered after his death? Do you have his original will with his original intentions. Does the will have a no contest clause. These are a few factors that you should consider.
Answer Applies to: California
Replied: 9/14/2012
Horn & Johnsen SC
Horn & Johnsen SC | Dera L. Johnsen-Tracy
If all of your uncle's assets were distributed to his wife upon his death (your aunt) outright, then the assets are now owned solely by your aunt and will be distributed according to the terms of her will upon her death. Unless you can prove that your aunt was mentally incapacitated at the time she executed her new will, or that she was subject to undue influence, then unfortunately there is not much you can do. This a common occurrence, and one of the primary disadvantages of estate planning using basic wills rather than living trusts.
Answer Applies to: Wisconsin
Replied: 9/14/2012
Charles M. Schiff, Attorney at Law
Charles M. Schiff, Attorney at Law | Charles M. Schiff
If the Uncle left a will leaving everything to his spouse but, if she did not survive him, then equally to both sides of the family, the fact that she survived him means that the entire estate is hers to deal with as she sees fit. She can leave her estate to her side of the family. Your Uncle's will no longer has any effect.
Answer Applies to: Minnesota
Replied: 9/14/2012
    Law Offices of Frances Headley | Frances Headley
    His spouse can not change his will, only her own. If you think that undue influence has been applied then you need to consult a probate attorney on how best to handle the situation.
    Answer Applies to: California
    Replied: 9/14/2012
    Richard E. Damon, PC | Richard E. Damon
    If your uncle's will dictated that his property go to his wife (your aunt), and if she died before he did, then his property go to nieces and nephews, and then your uncle was the first to die, your aunt inherited the property. She could then leave the property to anyone she wanted. If the money was in a trust that became irrevocable upon uncle's death, then aunt is bound by the trust provisions and you win.
    Answer Applies to: California
    Replied: 9/14/2012
    Danville Law Group | Scott Jordan
    Aunt and uncle are two different people and can have two separate wills. If your aunt was coerced, her will is challengeable since she was not acting of her free will. If your aunt still alive. If yes, she can still make changes to her will. She should use a reputable attorney for assistance.
    Answer Applies to: California
    Replied: 9/14/2012
    O'Keefe Legal Services, L.L.C.
    O'Keefe Legal Services, L.L.C. | Sean P. O'Keefe
    In Maryland, in the scenario ("Question Detail") you mention the uncle's will should be probated, and the assets should be distributed accordingly. Note: his surviving spouse may be able to claim a statutory elective share (X% based on other facts in the scenario) if she chooses. The aunt is welcome to amend her will however she chooses. However, she must do this while competent and not coerced by another(s).
    Answer Applies to: Maryland
    Replied: 9/14/2012
    Minor, Bandonis and Haggerty, P.C.
    Minor, Bandonis and Haggerty, P.C. | Brian Haggerty
    Aunt is free to change her mind, Uncle's will is not directly relevant any more. If you are correct that aunt was "coerced" into changing her will, then yes, that will can be set aside, but you'd better get on it NOW, before aunt passes away. Uncle's will may be some evidence of the earlier plan.
    Answer Applies to: Oregon
    Replied: 9/14/2012
    Bullivant Houser Bailey PC
    Bullivant Houser Bailey PC | Darin Christensen
    It depends on whether the will has express contractual limitations on the ability of the survivor to change her will. You should have a lawyer look at the wills.
    Answer Applies to: Oregon
    Replied: 9/14/2012
    Law Office Of Victor Waid
    Law Office Of Victor Waid | Victor Waid
    In response to your question, if your uncle's will disposition did not hinge on the death of your aunt, nor was she willed the property of your uncle, then the answer is no, and your uncle's will should have been probated. However, since you state your aunt was coerced to change the terms of her will, then you should consider obtaining a probate litigation lawyer to challenge the validity of her will on the basis of undue pressure and lack of mental capacity to make the changes.
    Answer Applies to: California
    Replied: 9/14/2012
    Timiney Law Firm
    Timiney Law Firm | Leigh Anne Timiney
    It is not possible to create a will for an individual who is already deceased. Whatever document your aunt was coerced into creating is not a legally valid document. The only property your aunt has the authority to deal with or dispose of is her own property and property left to her under your uncle's will. I strongly suggest you contact an estate attorney in your area and seek a consultation. If what you state is truly happening, this is fraud and it needs to be dealt with through the legal process.
    Answer Applies to: Arizona
    Replied: 9/14/2012
    The Schreiber Law Firm
    The Schreiber Law Firm | Jeffrey D. Schreiber
    Are you stating the uncle's will was changed after his death. If so, once he died the will cannot be changed by anyone. If they are stating that a wife can change her husband's will, she cannot do that even if he was alive. The only one who can change or void a will is the person who makes the will. If it is her will she is changing, she can do that at any time, but if the uncle's will gave some of his assets to others, she has the right to only what he gave her in his will.
    Answer Applies to: California
    Replied: 9/14/2012
    Leonard A. Kaanta, P.C. | Leonard A. Kaanta
    Yes. The uncle's will cannot be changed.
    Answer Applies to: Michigan
    Replied: 5/28/2013
    Jay W. Moreland, P.A.
    Jay W. Moreland, P.A. | Jay W. Moreland
    This question requires an answer that explores several concepts relating to a will. Any will can be contested, but every challenged will is not automatically rejected. The person challenging the will has the burden of proof to show why the will should not be accepted by the court. That means that the challenger generally must show that the person who executed the will did not understand the extent of his or her assets or the natural objects of his or her bounty. In other words the person must know what they have and who their relatives are at the time the will is executed. They may be incapacitated but have a "lucid interval" at the time of execution of the will. If so, the will is valid. The will must also not be executed under duress or undue influence or it can be successfully challenged. If she had a gun pointed to her head and was forced to sign a new will, that would be duress. There is a difference between persuasion and coercion. There is also a difference between persuasion and undue influence. To challenge a will successfully, the challenger must prove one of these defects was present at the signing of the will. Thus the witnesses impressions are very important as well as the mental condition of the testator (person who executed the will). A will can be changed every day right up to a person's death. So just because a new will was written with different beneficiaries doe not prove coercion. A will only controls the decedent's assets. Thus when the uncle died his will passed his assets to whomever he chose. If that included the aunt, she got the assets. Once she got the assets she could do whatever she wanted with them even if it differed from her previous plan. She, for whatever reason she deems appropriate, can decide not to give certain people anything. That is her decision. She is not bound by what she thought before. The uncle's wishes in his will do not overrule her change of mind. She could decide not to give anything to either side of the family and give it all to a friend. If the will is challenged, the court will determine whether the will is valid. So if this will was coerced and the coercion could be proven, it could be challenged successfully. Otherwise the will can be accepted by the court and the changes are valid.
    Answer Applies to: Florida
    Replied: 9/14/2012
    The Law Office of Eric J Smith
    The Law Office of Eric J Smith | Eric Smith
    Undue influence is a proper cause to contest a will. Undue influence is defined in Texas as "any influence, which compels the testator to do that which is against his or her will from fear, the desire for peace, or some other feeling that he or she is unable to resist." A widow can change a will to be different than her late husband's - she may dispose of her property as she sees fit. The issue is whether she made the change due to an influence as defined above. If the late husband had a concern that his family receive some of the property he controlled, he could have made those arrangements directly in his will.
    Answer Applies to: Texas
    Replied: 9/14/2012
    Neal M. Rimer, Esquire
    Neal M. Rimer, Esquire | Neal M. Rimer
    A Will cannot be executed after death. A person, the Testator, must properly do a Will before he or she dies. Probate starts after the Testator dies and then the Will is offered to the court. Notice is given to all beneficiaries. They have the ability to object. If no objection, then the Will is confirmed by the court and probate continues until distribution. If the Uncle left everything to Aunt, then Aunt can do whatever she wants to do with all her assets, including changing to only distribute her assets (even those inherited from Uncle) to her heirs. If Aunts Will is offered for probate, perhaps objections should be made that her Will was not made while she was competent and/or she was unduly influenced and that Will should be rejected, leaving her old Will to be probated.
    Answer Applies to: California
    Replied: 9/14/2012
    Martinson & Beason, PC
    Martinson & Beason, PC | Douglas C Martinson II
    A will cannot be executed after a person dies. However, in your case, if your uncle left all of his property to your aunt, that is your aunt's property and she can leave it to whoever she wants to. If your aunt was unduly influenced, you could contest the will, however, if you are not related by blood to your aunt, you would not receive any assets from the estate unless there is a previous will leaving property to you.
    Answer Applies to: Alabama
    Replied: 9/14/2012
    Brian M. Mekdsy Legal Services
    Brian M. Mekdsy Legal Services | Brian M. Mekdsy
    In order for a will to be valid, the person whose will is being drawn must have testamentary capacity. This means that your uncle had to know and understand the nature and extent of his property, and had to have an understanding of the types of people a mentally sound person would favor in deciding how to distribute his property (e.g., a spouse, children, parents, etc.). In addition, depending on the jurisdiction, your uncle would have had to sign his will (or direct someone to sign for him, in his "conscious presence") in the presence of two disinterested witnesses who also sign the will. If the circumstances surrounding the execution of the will do not comply with the laws of his state, the entire will could be found to be invalid. There are a number of ways to challenge the validity of a will: fraud, incapacity and duress are common challenges. As for whether your 90-year-old aunt could change the will after your uncle's death I think that your question suggests the answer. If in fact your 90-year old aunt was "coerced into changing [the] will so that everything goes to only her side of family," that sounds like grounds for legitimately challenging the will in probate court. Frankly, even if she was not coerced into changing the will, but took it upon herself to do so, that would still be grounds to challenge the will, as only your uncle could have executed his will. As soon as your uncle died, the will could not be changed. You really should contact a probate litigation attorney to find out what your options are in this situation.
    Answer Applies to: Massachusetts
    Replied: 9/14/2012
    GOLD & ASSOCIATES, P.C.
    GOLD & ASSOCIATES, P.C. | KENNETH GOLD
    No one can change another person's Will either before or after death.
    Answer Applies to: Michigan
    Replied: 9/14/2012
    Whiteford, Taylor, & Preston | Edwin Fee
    The uncle's will cannot be changed after he has died, but his will only controls the assets that were in his name alone, without any joint ownership or beneficiary designation. The aunt may change her will, and that will controls the assets that are in her name alone, without any joint ownership or beneficiary designation. If the uncle and aunt owned assets jointly with right of survivorship, then those assets became the aunt's assets upon the uncle's death. The same goes for the uncle's assets that designated the aunt as beneficiary. If the aunt was coerced to execute a will that she otherwise would not have executed voluntarily, then the will might not be valid.
    Answer Applies to: Maryland
    Replied: 9/14/2012
    The Taylor Law Office L.L.C.
    The Taylor Law Office L.L.C. | Ian A. Taylor
    A person can change their own will, regardless of age if they have the capacity to do so. Capacity requires several things, but basically a person needs to be able to understand the extent and nature of their estate (belongings and assets) and who that stuff they would want that stuff to go to if that person dies. Normal 0 false false false MicrosoftInternetExplorer4 > If a person is influenced in any way to give their property away in any certain way (ie. coerced), then their will is invalid. Normal 0 false false false MicrosoftInternetExplorer4 > Your situation suggests that your aunt was able to change your uncle?s will after death. This will would not be accepted by the probate court for probate. If it is, it can be challenged by a beneficiary or potential beneficiary. There are some practical considerations that must be considered to determine whether and how to fix this situation. Please seek an estate planning attorney or elder law attorney in your area for advice.
    Answer Applies to: South Carolina
    Replied: 9/14/2012
    Neil J. Lehto, Esq.
    Neil J. Lehto, Esq. | Neil J. Lehto
    In absence of a contract between the aunt and uncle, either of them could change their will after the other died. Michigan law does not favor finding a contract to make a will. The State Legislature has provided that (1) If executed after July 1, 1979, a contract to make a will or devise, not to revoke a will or devise, or to die intestate may be established only by 1 or more of the following: (a) Provisions of a will stating material provisions of the contract. (b) An express reference in a will to a contract and extrinsic evidence proving the terms of the contract. (c) A writing signed by the decedent evidencing the contract. (2) The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills.
    Answer Applies to: Michigan
    Replied: 9/14/2012
    David T. McAndrew, Attorney at Law | David T. McAndrew
    First, you can't change someone else's will after their death. However, I assume that the uncle's assets were left to his wife, and now she has presumably changed her will to dispose of their assets according to her wishes. Absolutely, unless you can establish that she lacked the testamentary capacity to know what she was doing. This is a common problem with second marriages. The parties draft wills leaving their joint assets to their children equally, father dies, and two years later, here comes Grandma into the office being pushed in the wheelchair by one of her children wanting to exclude those other kids, who never visit anymore and don't deserve a share of HER assets.
    Answer Applies to: Michigan
    Replied: 9/14/2012
    Frederick & Frederick PLC | James P Frederick
    This Will, like any other, can be contested. Like any Will contest, you have an uphill battle, and it is likely to be in court a long time and cost a great deal of money. The grounds for contesting the Will are either that your aunt did not have legal capacity to know what she was doing, or that she was unduly influenced by someone else. The fact that the Will changed your uncle's estate planning intent is not grounds for challenging it. If you can prove either lack of capacity or undue influence, then you can win. As noted above, these cases are difficult to win and are costly. I have successfully challenged Wills on these bases, before. If you have compelling proof of your claims, then it may be possible. If the new Will was prepared by an attorney, it will be MORE difficult to challenge, as the attorney will testify against you. Courts presume documents to be valid until they can be proven otherwise. This is to encourage people to do their estate planning in the first place.
    Answer Applies to: Michigan
    Replied: 9/14/2012
    THE BROOME LAW FIRM, LLC
    THE BROOME LAW FIRM, LLC | Barry D. Broome
    A Last Will & Testament cannot be changed after a person dies. It appears from the information given that the elderly lady's estate may be improperly influenced. If the Will was probated then I would file a caveat and challenge the current actions. Barry Your financial plan is not complete until it is co-ordinated with your estate plan. Will your family be provided for when you are gone? Without a Will, the court will decide.
    Answer Applies to: Georgia
    Replied: 9/14/2012
    Law Offices of Charles R. Perry
    Law Offices of Charles R. Perry | Charles R. Perry
    You need to see an attorney experienced in handling probate issues. It is not possible to advise you without seeing the will that your uncle signed. There are many attorney here that can provide you with advice once they see your uncle's will. Best of luck to you.
    Answer Applies to: California
    Replied: 9/14/2012
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