Professor Judith G. McMullen, Marquette University – Law School, just published a new article that should be of interest to probate litigators trying to make sense of the underlying dynamics driving most will contests: Keeping Peace in the Family While You are Resting in Peace: Making Sense of and Preventing Will Contests.
Here’s the SSRN abstract of this article:
This Article focuses on post-mortem challenges to wills. All such will challenges involve a clash between the testator’s stated intentions and the disappointed heirs’ expectations and desires. While the legal issues may differ somewhat in individual cases, the claims are almost invariably the result of a disappointed heir feeling that she has been treated unfairly or has not received what she expected to receive. Rather than focusing on the technical issues of will drafting or execution, this Article reflects on the emotional causes of fighting over an estate and suggests some ways to reduce the family fighting and hard feelings that result in will contests.
The first section of the Article describes some of the common legal challenges used to prevent the enforcement of specific will provisions or to contest the will’s admission to probate. The Article then discusses the overarching issue of why surviving family members fight about property after the death of a love one. Here, the Article describes the legal concept of freedom of testation and contrasts a testator’s view towards property ownership and disposal with the views of potential family recipients. This section also discusses the implicit preference that the law gives to presumptive heirs – a preference that probably bolsters the resolve of disappointed heirs to engage in will challenges. In the final section, this Article describes specific steps that typically are recommended for use by testators to reduce the likelihood of will challenges, and it concludes by asking clients and their lawyers to mull over the long-term emotional and social repercussions of proposed estate plans.