Two Reasons Why Connecticut Wills Are Contested
Nick, Maria and Angelo are the three adult children of Gustavo, who recently passed away. Maria accompanied Gustavo to an estate attorney’s office three months prior to his death to revise his last will and testament. Gustavo intended to leave the proceeds of his estate in equal shares to all of his children and he also wanted to include a provision about instructions for selling his prized gun collection, should his children decide not to keep it. Nick and Angelo believe that Maria pressured Gustavo into donating his personal property to charity so that they cannot benefit from the proceeds themselves. They are arguing that his most recent last will and testament is not valid. What are some common reasons why a will would be contested?
The Will was Improperly Executed
One common method of challenging the legitimacy of a last will and testament is to argue it was executed or filed improperly. This is colloquially referred to as “failure of form”. If the challenger indicates that the will was not signed by the decedent and instead was forged, he must allege this when he files an Objection to the Admission of a Will. The procedural process for challenging a will is discussed in the next installment of this blog. If the challenger argues that the will was incorrectly witnessed or not witnessed at all, the challenger has the burden of proof in establishing their allegation before a probate judge. Another common challenge is to argue that the last will and testament submitted as an exhibit to probate is in fact an old copy and therefore should not be adhered to. Again, the burden of proof lies with the petitioner.
Incapacity at Time of Signing
Contrary to popular belief, an interested party cannot challenge a will just because they are unhappy with their inheritance or lack thereof. They must state appropriate grounds for the formal challenge with probate court. Typically, if there is no failure of form issue with the document itself, the petitioning party might argue that the decedent was incapacitated when the will was executed. In Connecticut, incapacity is defined as the “inability of the individual to perform functions inherent with the management of his or her affairs because of a mental, physical, or emotional condition,” that results in he or she being unable to “receive and evaluate information or “make or communicate decisions”. Connecticut Statute also recognizes an individual as incapacitated if they are actively incarcerated, missing, or located outside the U.S. without the ability to return. (C.G.S. Sec. 1-350a.)
If the petitioning party is alleging that the decedent was incapacitated or incompetent at the time of signing, they have the burden of proof in establishing it. If the decedent had a medical condition unbeknownst to the witnesses and attorney at the time of signing that affects memory or ability to reason, such as dementia or Alzheimer’s, the petitioning party could argue that the decedent did not understand what they were signing. If on a decedent’s deathbed, a sibling or child drafts a new copy of the last will and testament without discussing it with their dying parent and then convinced the elderly parent to sign it, and the petitioning party can present evidence to establish it, they may prevail in a challenge that the will is void due to incapacity.
Contact Canton Estate Planning Lawyer Brian S. Karpe
It is hard enough dealing with the loss of a parent or close one. It is even more challenging when probate turns into a battle about what each sibling is or is not entitled to, diminishing your loved one’s last wishes. If your loved one recently passed away with a will that is now contested by a sibling or other interested party, and you are unsure how to proceed, contact Canton estate planning attorney Brian S. Karpe. Call today to schedule a comprehensive evaluation.
