Law Blog

As the baby boomers approach their golden years, many are planning to leave legacies and to provide for their families’ well being by drafting estate plans.  However, as I looked over the thousands of cases posted on LegalMatch, it seems that a sizeable number of wills are challenged in court. 

According to LegalMatch case data from the past 5 years, 61% of people claiming an interest in the estate of the decedent (the person who dies) involve a written will.  Most commonly, children brought these lawsuits (43%); parents (16%), grandkids (9%) and spouses (5%) were less likely to take legal action. 

So, why are these wills being challenged?  People seek to prevent or stop a will from being probated for a number of reasons.  Commonly, plaintiffs claim that:  1) the will reflects a mistake of the testator, 2) the testator wrote his will under undue influence, fraud, or duress, or 3) the testator lacked testamentary intent or the capacity to write his will in the first place.

While a minority (23%) of the LegalMatch will contests that I evaluated involved decedents who died intestate (without a written will), according to a 2007 Harris poll, 55% of U.S. adults don’t have a will or estate plan.  This trend is even more prevalent among minorities: only 32% of African Americans and 25% of Hispanic Americans have wills, compared with 52% of White Americans. 

According to the same Harris poll, however, more Americans are making living wills (also known as health care directives), perhaps in response to widely publicized disputes such as the Terry Schiavo case.  Respondents’ number one reason for not making a will?  They thought they didn’t have enough assets to worry about.  Other popular responses were:  1) I don’t want to think about dying or being incapacitated, 2) I don’t know who to ask about drafting a will, and 3) procrastination. 

While crafting your will to withstand legal challenge may seem complicated, a good lawyer should be able to do this competently.  However, there is one simple thing that all laypersons can do: make your will accessible!  I found that 17% of LegalMatch will contests indicated that the parties did not even know if a will existed!  Remember, even the most carefully drafted will won’t do a bit of good if it can’t be found. 

Maybe the knowledge that their children will most likely be the ones to hash things out in court will motivate parents to start drafting their wills with care.  Also, while it’s troubling to know that so many people leave their estates unsettled, it’s also comforting to know that legal action can be taken even if the decedent fails to leave a will or alert his loved ones that a will exists at all.

The Illinois case, In re Estate of Max Feinberg has drawn national attention and raises thorny issues, including how individual freedoms should be interpreted in a post-civil rights world. 

In Feinberg, the Illinois Supreme Court invalidated a trust provision that attempted to disinherit certain beneficiaries if they married persons who were not Jewish.  The court found that the clause violated public policy as discouraging marriage.  Most states hold that provisions discouraging marriage or encouraging divorce violate public policy; however, there’s no consensus on faith-based restrictive clauses.  For example, in Shapira v. Union National Bank, an Ohio court upheld a provision requiring the decedent’s son to marry a Jewish woman within seven years of the testator’s death in order to collect his inheritance. 

According to Restatement Third of Trusts, the Feinberg provision is clearly invalid.  The Restatement specifies that a provision eliminating a beneficiary’s rights to a trust if he marries someone outside a designated religion is void as a violation of public policy.  The Restatement clarifies: trust provisions are generally invalid if they “encourage disruption of a family relationship . . . discourage formation or resumption of such a relationship . . . [or] seriously interfere with or inhibit” the beneficiary’s freedom to divorce or marry “by limiting the beneficiary’s selection of a spouse.”  Given how the provision in question has caused major turmoil within the Feinberg family, it would be invalid under the Restatement.

If Feinberg goes all the way to the U.S. Supreme Court, I hope the Justices will give strong consideration to the fact that the clause does not put the grandchildren’s fundamental right to marry at stake; instead, it merely threatens their inheritance.  Furthermore, a testators’ freedom to dispose of their personal property as they wish has long been respected.  Do we really want to whittle away at this freedom?