By Lane V. Erickson, Idaho Estate Planning Attorney
At the Racine law office our team of premier Idaho estate planning attorneys have assisted clients with their estate planning for more than 70 years. I’ve been privileged to be part of this team for the last 20 years. When people find out that I do estate planning as a lawyer, they either say to me that they need to get it done, or they ask me specific questions about estate planning. One of the questions I am most often asked is whether a person would have a right or the legal ability to contest a written Last Will and Testament that belongs to a parent, or some other family member or loved one. Usually this question comes up because the person believes something wrong has happened and they want to try to correct it.
Through our knowledge and experience our team of Idaho estate planning attorneys are able to provide advice and counsel about contesting a will. Our team consists of partners Randy Budge and Lane Erickson and attorneys Nate Palmer and Dave Bagley. Each of our estate planning lawyers has been around for some time. This alone is not enough to qualify us to be considered one of the premier estate planning and probate firms in Idaho. Rather, it is our experience and knowledge that gives us the ability to help our clients with their questions and concerns, including contesting a will.
To be crystal clear, anyone at any time could contest a written will. The real question is not whether you could contest a will but rather, whether you have any evidence where a court would find that the will is invalid for some reason. If there are no real reasons that a court could find a written will to be invalid, then my advice and counsel to each individual who asks me this question is that it probably would be a waste of their time and money to try to challenge or contest the will. The purpose of this article is to provide you with a short list of the types of evidence that may exist for you to have a valid reason to contest the will.
The Will Doesn’t Satisfy the LawThe first valid reason that might exist to allow you to contest a will is that the will itself does not satisfy the legal requirements to be a will in the first place. In Idaho, there are really two types of wills that can exist. The first is known as a formal will. This type of will is a will that is typed up, that is signed, dated, witnessed by at least two witnesses, and also is notarized to become a self proving will. When this type of will is produced to a court it is presumed to be valid because it is self-authenticating, and it meets all the requirements for a valid formal written will.
The second type of Last Will and Testament that can exist and is valid under Idaho law is called a holographic will. This type of will is one that is written in the handwriting of the person who is creating the will. It is also signed and dated in that person’s own handwriting. This type of will does not need witnesses nor does it need to be notarized.
If either of these two types of wills exist, then we usually tell our clients it’s going to be a difficult thing to prove that they are not valid. However, there are still some reasons that even these types of wills could be invalid under Idaho law. These reasons will be discussed in more detail below.
The Person Lacked CapacityThe first reason that even a written will regardless of whether it’s formal or holographic could be considered invalid is that the person who signed it didn’t know what they were doing. In other words, to use Idaho law, the person lacked capacity when they sign the will.
While this doesn’t happen very often when you’re dealing with a formal will that is self-authenticating because it involves witnesses and notaries, it is still possible. However, to be clear, it is a difficult thing to prove. To show that a person lacked capacity, and didn’t understand what they were doing, the evidence has to show that this occurred at the time they signed the will. In other words, even if a person has dementia or some other illness or injury like Alzheimer’s disease that might affect their capacity and understanding, if at the time they signed their will they knew exactly what they were doing, then the will would still be valid. Because of this, the witnesses to the will are going to be important because their testimony will describe whether or not the person who signed the will knew what it was they were doing.
The types of evidence that might be used to prove that a person to not have a capacity would include their medical records. It could include the testimony of the doctors that were treating this person. It could also include any other documents or testimony from other sources that can talk about what the person was like at this time in their lives. However, if the will is witnessed, it will be difficult to prove.
The Person was Threatened or PressuredThe next way that a will could be proved to be invalid as if there is evidence showing that the person was threatened or pressured to sign the will even if they didn’t want to. In legal terms we call this undue influence or coercion. This obviously occurs if somebody is being physically threatened by another individual. But physical threats alone aren’t all that must exist in order to show coercion. If a person is threatened that they will not be fed or taken care of, or that some other bad thing may happen to them, then the will that they sign may be proved to be invalid because it really doesn’t represent the true intent and wishes of the individual who signed it.
Again, when it comes to a formal written will, if the attorney who is helping the individual create and sign the will does a good job, it’s almost impossible for there to be some sort of threat or pressure. The reason for this is that the attorney should take the time to speak with the individual and to make sure that what they are doing truly is the intentions and wishes of the individual who will be signing the will. It’s for this reason that we often take the time to determine what it is that is motivating the individual to create their will in the first place. We also do our best to observe the interactions and relationships that exist between our client and their family members who may be with them while they are either creating or are signing their estate planning documents.
The Will was Created FraudulentlyFinally, a will could be proved to be invalid if there is evidence that fraud occurred. Obvious cases of fraud are where an individual forges a signature on a document and claims that it belonged to the person who passed away. But this is not the only type of proof that fraud exists. It’s also possible that someone who is perpetrating the fraud may tell the individual that they are signing some other document when in fact they are actually signing their last will and testament. Again, in this instances, witnesses are important.
So, as you can see, whether or not a person could contest a will is not really the question. The real question is whether there is any evidence that exists showing that a will is invalid. If this type of evidence exists, then a person should contest the will and show that it does not contain the real intentions and wishes of the individual who created the will.
We have assisted numerous clients in determining whether or not a will should be contested. We are confident that if you have questions about this we can help you too.
Enlist an Idaho Business Attorney to Help YouOur team of Idaho lawyers can help you with any of your estate planning or probate needs. Whether you are seeking to create or review an estate plan for yourself or would like to help a loved one, we are available to discuss your options and answer your questions at an initial consultation. Call us toll free at 877.232.6101 or 208.232.6101 for a consultation. You can also email us directly at lane@racineolson.com or stop by our office at 201 East Center Street, Pocatello, Idaho 83201. We will answer your questions and help you solve your Idaho Estate Planning problems.