What Are the Most Common Estate Disputes?

By preparing an estate plan, many people can avoid disputes over their property when they die.  However, sometimes disputes arise among surviving family members even with careful estate planning.   

“There are all kinds of motives for why people do these things,” says Robert Will, an estate litigation lawyer at Lewis Rice in St. Louis, Missouri. “Sometimes, people are rightly indignant over problems with a will, or with how they have been treated, or how others may have behaved toward the deceased during their lifetime.  Other times, people are angry because of a sibling’s preferential treatment. They feel like they should have gotten more.”

As a lawyer, Will says it’s “particularly unhelpful” when strong emotions or vindictiveness drive an estate dispute rather than fact-based justifications. While estate planning helps avoid estate litigation, an experienced estate litigation lawyer is essential if you are in a dispute. This article will explain some of the main reasons for estate litigation and practical issues to consider if you’re considering contesting a will or trust.  

Common Estate Litigation Issues  

Estate assets include a person’s real estate, personal property, financial assets, and intangible property. In addition to the money and property, estates often include family heirlooms and items with sentimental value to loved ones.  If a family member or other loved one feels left out or cheated in the will or trust, they can try to contest the document in court.  

Some of the main grounds on which people will challenge an estate plan include:  

• Drafting defects. If there are legal deficiencies in a will or trust document, you can challenge the document’s validity in probate court.  
• Lack of testamentary capacity. If you can prove the person lacked the mental capacity to create a will or trust, you can challenge the validity of the document in probate court. Adults are presumed to have the capacity to make a will. Proving otherwise is often a challenge.
• Undue influence. If you can show that someone coerced or misled the testator into creating or adding certain provisions to a will, you can challenge the will’s validity in probate court.  

Breach of Fiduciary Duty

Suing for breach of fiduciary duty isn’t technically challenging the provisions of the estate plan. Rather, it’s challenging how a representative failed to carry out their responsibilities. 

 Fiduciary duty refers to a person’s responsibility when representing the personal interests of someone else. In the context of estate planning, there are several individuals with a fiduciary duty:

• Personal representative. Also called an executor, this person oversees estate administration in probate court, including asset distribution to named beneficiaries. 
• Healthcare power of attorney. A person authorized to make decisions about medical and end-of-life issues on behalf of the individual if they become incapacitated.
• Financial power of attorney. Someone authorized to make financial decisions on behalf of the individual if they cannot.
• Trustee. Person who oversees trust administration, including transfer of trust assets to beneficiaries.

If an person breaches their fiduciary duty by failing to follow the terms of document or failing to act in the best interests of the person who appointed them, an interested party can sue them in court. 

Who Can Challenge a Will?  

You must have legal standing to dispute a will or trust. Legal standing is essentially a way of weeding out people who don’t have a legitimate interest in suing. To sue, you must be an interested party. Interested parties are often people named as a beneficiary in a will or trust – in other words, people who stand to benefit from the estate. Interested parties also include creditors.

So, if you were named in a current or previous will, you may be an interested party and have legal standing. 

Ask Yourself: If You Successfully Challenge the Current Will, What Replaces It?

Will says that if you plan to contest a will or trust, “You always need to have a game plan – if you win, what happens?” For example:

• Is there an older will or trust that would be operative if the current will gets thrown out?
• Would that older will or trust get you where you want to be in terms of inheritance?
• Would the state’s intestate laws apply if the current will or trust is invalidated?

“Sometimes, there are multiple layers, and you have to go back two or three trust amendments or will codicils to get where you want. If this is the case, you must consider whether you can make the case for undue influence or lack of capacity for each of the changes getting in the way of the one that you want to have enforced.”  

Because of the complexity of will contests, “It can be a pretty daunting and expensive task. It’s very fact-specific, and there are high emotions involved,” Will says. “So, I often tell people that if there isn’t a lot of money involved, or if creditors are going to get a good chunk of the estate, then it’s probably not worth contesting, even if people say they don’t care or just want to prove a point.”

Practical Considerations in Challenging a Will  

This is not to discount the importance of setting the record straight or stopping someone from trying to profit from what you believe were not the true wishes of the testator or trust grantor. However, it is crucial to weigh the factors before taking legal action, realizing that contesting a will or trust can be expensive and time-consuming, and often very dissatisfying, including, in many cases, even when the challenge is successful 

It’s best to consult with a lawyer about these issues and to do so as soon as possible. In fact, the timeframe for challenging a will is very short in most states–often a matter of several months at most. So, it’s imperative to act quickly.  

Find an Estate Litigation Attorney  

Look for a lawyer specializing in estate and trust litigation in the Super Lawyers directory.