Unequal Distributions and the Disappointed Beneficiary: Avoiding Future Challenges to Elder’s Estate Plan

Unequal Distributions and the Disappointed Beneficiary: Avoiding Future Challenges to Elder’s Estate Plan

By Donald D. Vanarelli, Esq.


An elderly widower has an unmarried daughter who moves in with and cares for him for the last two years of his life. Although the father has two sons, they are both married and employed full-time, and they are unable to provide meaningful assistance to their father. The daughter arranges and takes her father to all of his appointments. When he tells her he wants to make a will, she accompanies him to a local attorney she finds in the telephone book. The father never discusses his estate plan with his children. But when he dies, his children discover that he has left the bulk of his estate to his daughter.

The above facts may illustrate the actions of a loving and concerned child for her father, and her father’s acknowledgment and reward for that devotion. However, these same facts may also provide the disappointed sons with a basis for challenging their father’s will, by claiming that the daughter unduly influenced her frail father into leaving her more of his estate than he have would have done freely.

When developing an estate plan, a difficult issue that is often overlooked or purposely ignored by elders is the possibility that, after their death, their estate plan could be challenged by those who expected more favorable treatment under the elder’s Last Will and Testament. For example, decisions not to leave estates equally to all of the elder’s children could lead those children treated less favorably to bring a “will contest” after the elder’s death, by claiming that the will was the product of “undue influence” or that the elder lacked the mental capacity to execute the will (“testamentary capacity”). Paradoxically, the same set of facts could be seen by some as justifying an unequal distribution, and seen by others as proof of undue influence. With this in mind, encouraging elders to consider these issues now can prevent the emotional and financial devastation that often accompanies a will contest.

Failing to Recognize the Risk

Sometimes, the possibility of will contests is not recognized by elders. Elders may assume that their children will understand that more is being left to the child who “needs the money” more, or who helped the elder in his/her later years. In fact, unexplained and disparate treatment of children by a parent can cause the less favored child to feel deceived, and to believe that the favored child has played a role in that deceit.

Elders may also assume that will challenges only happen when huge estates are involved. In fact, will challenges occur in the context of all estate sizes. One study has found that smaller estates tend to “generate at least as much, if not more, controversy than larger estates.”1 Because will challenges are rooted in deep-seated family histories, distraught will contest participants often believe that they are fighting for the “principle” of the matter, which leads them to disregard the reality that the financial costs of litigation may be greatly disproportionate to the size of the estate involved.

Ignoring the Risk

At other times, however, elders recognize the possibility that their children may some day challenge their will. Nevertheless, rather than confronting the difficult issues involved while they are alive, elders may choose to ignore them. They may cling to the hope that a will challenge will not occur, or conclude that their children can “work things out” after the parents are gone. Elders might believe that raising the issue of their testamentary plan might cause buried family problems to surface.

In sum, elders may assume that executing a Last Will and Testament will be the final word on how their estate will be disposed of. Unfortunately, this may not be the case. Litigation costs can largely deplete an estate and can irretrievably damage family relationships.


Standards For Determining Testamentary Capacity

As a general rule, a person possesses the capacity to make a valid will if he/she is over the age of majority and “of sound mind.” This requires being capable of understanding the general nature and extent of his/her estate, the person(s) who are the natural objects of his/her bounty, and the substance of his/her estate plan.2

This standard is not considered to be demanding. However, because a person whose capacity is diminished due to age or illness is generally considered more vulnerable, these characteristics may bolster a claim of undue influence.

Standards For Determining Undue Influence

Undue influence is defined as influence exerted on the testator (the person who has made the will) that overcomes the testator’s free agency, such that the testator’s will reflects another person’s wishes, rather than the true wishes of the testator.3

Taking Steps Now To Avoid Will Contests Later

As the opening example illustrates, cases involving undue influence are highly fact-sensitive. The same factors that may lead elders to favor their children in their estate plans may also be used to support claims of undue influence. Therefore, it is important to encourage elders to address both the legal and emotional issues involved in making an estate plan, and to consider engaging the services of a lawyer who is familiar with these issues.

Experienced estate planning lawyers will employ a variety of tools to guard against future will challenges. The elderly or infirm testator may be examined by a physician to establish testamentary capacity. Lawyers may employ a checklist, which will then be included in their files, to ensure (and document) that key issues and questions have been considered and addressed at or before the will signing. These lawyers recognize that those who have an interest in the elder’s estate plan (for example, the child that the elder intends to favor in his/her will) should never be used as a witness to the will, because using an “interested” witness could later raise an issue of undue influence. In fact, the mere attendance of a family member or other interested person at the will signing should be avoided.

Another device that may be used to guard against will challenges is a statement by the testator (either written or videotaped) that memorializes the testator’s estate planning objectives. This would provide evidence of the testator’s capacity and intent, explaining the rationale for his/her plan and negating an inference that the plan was ill-considered or the result of someone else’s influence.

Finally, elders may take affirmative steps themselves to ward off a potential will contest, by engaging in a frank dialogue with their children (either privately or with the assistance of a counselor, advisor, mediator or lawyer) and explaining the rationale behind their estate plan.

Addressing these issues while elders are still alive allows families to reach resolution regarding areas of conflict, while allowing the elders and their families to move forward with a relationship that may be not only preserved, but strengthened, by the process. End of article icon.

* Substantive and procedural law in the area of will contests varies by state; this Article is designed to provide the reader with an overview of the legal background.
1 Collins, D., Avoiding a Will Contest: The Impossible Dream?, 34 Creighton L. Rev. 7 (Dec. 2000) (citing Schoenblum. J., Will Contests: an Empirical Study, 22 Real Prop., Prob. & Tr. J. 607 (1987)).
2 See Champine, P., Expertise and Instinct in the Assessment of Testamentary Capacity, 51 Villanova L. Rev. 25 (2006).
3 Herman, L. 96 Am. Jur. Trials 343 at §24 (2007).


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