What Sparks the Contesting of a Will?

A last will and testament is the document used to direct your executor to distribute assets and property according to your wishes. However, it’s not uncommon for disgruntled or distant family members or others to dispute the validity of the will. A recent article titled “5 Reasons A Law Will May Be Contested” from Vents Magazine explains the top five factors to keep in mind when preparing your will.

Undue influence is a commonly invoked reason for a challenge. If a potential beneficiary can prove the person making the will (the testator) was influenced by another person to make decisions they would not have otherwise made, a will challenge could be brought to court. Undue influence means the testator’s decision was significantly affected by a person who stood to gain something by the outcome of the will and made a concerted effort to change the testator’s mind.

Even if there was no evidence of fraud, any suspicion of the testator’s being influenced is enough for a court to accept a case. If you think someone unduly influenced a loved one, especially if they suffer from any mental frailties or dementia, you may have cause to bring a case.

Outright fraud or forgery is another reason for the will to be contested. If there have been many erasures or signature styles appear different from one document to another, there may have been fraud. An estate planning attorney should examine documents to evaluate whether there is enough cause for suspicion to challenge the will.

Improper witnesses. The testator is required to sign the will with witnesses present. In some states, only one witness is required. In most states, two witnesses must be present to sign the will in front of the testator. A beneficiary may not be a witness to the signing of the will. Some states have changed laws to allow for remote signings in response to COVID. If the rules have not been followed, the will may be invalid.

Mistaken identity seems farfetched. However, it is a common occurrence, especially when someone has a common name or more than one person in the family has the same name, and the document has not been properly signed or witnessed. This could create confusion and make the document vulnerable to a challenge. An experienced estate planning attorney will know how to prepare documents to withstand any challenges.

Capacity in the law means someone is able to understand the concept of a will and contents of the document they are signing, along with the identities of the people to whom they are leaving their assets. The person doesn’t need to have perfect mental health, so people with mild cognitive impairments, such as depression or anxiety, may make and sign a will. A medical opinion may be needed, if there might be any doubt as to whether a person had testamentary capacity when the will is signed.

A will contest can be time-consuming and expensive, so keep these issues in mind, especially if the family includes some litigious individuals.

Reference: Vents Magazine (May 6, 2022) “5 Reasons A Law Will May Be Contested”

Can Family Members Contest a Will?

Estate planning documents, like wills and trusts, are enforceable legal documents, but when the grantor who created them passes, they can’t speak for themselves. When a loved one dies is often when the family first learns what the estate plans contain. That is a terrible time for everyone. It can lead to people contesting a will. However, not everyone can contest a will, explains the article “Challenges to wills and trusts” from The Record Courier.

A person must have what is called “standing,” or the legal right to challenge an estate planning document. A person who receives property from the decedent, and was designated in their will as a beneficiary, may file a written opposition to the probate of the will at any time before the hearing of the petition for probate. An “interested person” may also challenge the will, including an heir, child, spouse, creditor, settlor, beneficiary, or any person who has a legal property right in or a claim against the estate of the decedent.

Wills and trusts can be challenged by making a claim that the person lacked mental capacity to make the document. If they were sick or so impaired that they did not know what they were signing, or they did not fully understand the contents of the documents, they may be considered incapacitated, and the will or trust may be successfully challenged.

Fraud is also used as a reason to challenge a will or trust. Fraud occurs when the person signs a document that didn’t express their wishes, or if they were fooled into signing a document and were deceived as to what the document was. Fraud is also when the document is destroyed by someone other than the decedent once it has been created, or if someone other than the creator adds pages to the document or forges the person’s signature.

Alleging undue influence is another reason to challenge a will. This is considered to have occurred if one person overpowers the free will of the document creator, so the document creator does what the other person wants, instead of what the document creator wants. Putting a gun to the head of a person to demand that they sign a will is a dramatic example. Coercion, threats to other family members and threats of physical harm to the person are more common occurrences.

It is also possible for the personal representative or trustee’s administration of a will or trust to be challenged. If the personal representative or trustee fails to follow the instructions in the will or the trust, or does not report their actions as required, the court may invalidate some of the actions. In extreme cases, a personal representative or a trustee can be removed from their position by the court.

An estate plan created by an experienced estate planning lawyer should be prepared with an eye to the family situation. If there are individuals who are likely to challenge the will, a “no-contest” clause may be necessary. Open and candid conversations with family members about the estate plan may head off any surprises that could lead to the estate plan being challenged.

One last note: just because a family member is dissatisfied with their inheritance does not give them the right to bring a frivolous claim, and the court may not look kindly on such a case.

Reference: The Record-Courier (May 16, 2021) “Challenges to wills and trusts”

A Four-Decades Long Social Security Scam Finally Ends

In one of the largest fraud cases of its kind, a 76-year-old small business owner in Oregon has been collecting his deceased aunt’s Social Security checks and even her stimulus payment from the Treasury Department issued in May, as reported by AARP in the article “Nephew Allegedly Cashed Dead Aunt’s Social Security Checks for More Than 40 Years.” The nephew, George William Doumar, also collected his own Social Security benefits, telling authorities, “it was nice to have the extra money coming in every month.”

Both Doumar and his aunt, who is not named, lived in Brooklyn. She never married and had no children. Before she died, back in 1971, she named her nephew her sole beneficiary of her life insurance policy. Until July 14, he was getting both his and his aunt’s monthly checks. When interviewed at his home by federal agents, he slumped and said, “that’s a long story … what happened was, well, she’s passed and yes, I’ve been collecting her Social Security.”

Here is what has emerged in this bizarre story:

At age 65, the aunt applied for Social Security, but her wages in 1970 made her ineligible to receive benefits. By August 1977, the Social Security Administration initiated retirement benefits, using her initial benefit application. The first retirement check went out to her in September 1977—after she’d been dead for more than six years.

She had lived in a nursing facility in Brooklyn from about 1969 until her death in 1971. Doumar also lived in Brooklyn and says he doesn’t recall how he obtained regular possession of the checks. He also said that at one point, he reported her death to the SSA, but there are no records of her death being reported.

At first, he cashed her checks at a New York business he owned, but he moved to Oregon in 1989. He forged her signature to add her name to a joint checking account he had with his wife in Oregon. The Social Security checks were mailed to the business he owned.

In February, when government staffers deemed that the aunt would have been 114 years old, they became suspicious. No updates had been made to her account in more than 30 years, except for the address change.

Doumar is facing felony charges, and authorities plan to seek restitution for the amount he stole: $460,192.30. Minus the stimulus check, that’s about $912.50 a month, for nearly 42 years.

It might have been nice to have the extra money, but not to be facing the possibility of 10 years in prison and a $25,000 fine, in addition to paying back the money owed to the Social Security Administration.

Reference: AARP (Aug. 14, 2020) “Nephew Allegedly Cashed Dead Aunt’s Social Security Checks for More Than 40 Years.”

Baseball Champion Sues Daughter-In-Law, denies having Dementia

Eighty-two-year-old Giants great Orlando Cepeda filed a lawsuit against his daughter-in-law Camille Cepeda alleging elder financial abuse, fraud and infliction of emotional distress, as reported in the article “Giants great Orlando Cepeda denies having dementia, sues daughter-in-law for fraud” from the San Francisco Chronicle. He also accused her of negligence in handling his finances, after giving her power of attorney in 2018.

Cepeda accuses Camille of spending his money on personal expenses, including lease payments on a $62,000 Lexus, a Louis Vuitton handbag, expensive wine and taking out at least $24,000 in cash from his accounts. It also claims that she has placed all of his baseball memorabilia in a storage locker and will not give him the key or the location of the locker. That includes his National League Most Valuable Player trophy, which he wants back.

This is the latest news from a dispute that began after the Hall of Famer married his second wife, Nydia. They had two of Cepeda’s four sons, including Ali Cepeda, who is married to Camille. The parents are now not speaking to their son, and some of the brothers, four in total, have taken sides and are not speaking to each other.

Cepeda granted his daughter-in-law power of attorney in April 2018, two months after he suffered a heart attack and irreversible brain damage caused by oxygen deprivation. She was to have access to his accounts and pay his bills. Before the heart attack, she had handled his financial and business affairs.

On May 29, Camille filed a petition with the court seeking conservatorship of Cepeda, stating that he has dementia and cannot make his own financial decisions. Two of Cepeda’s sons, including Camille’s husband Ali, filed papers supporting her petition.

In Cepeda’s response, he cited two neuropsychological reports, including one done in May, that declared that he was fit to make his own medical decisions and understands all but the most complex financial issues. Cepeda says that his daughter-in-law filed for conservatorship to cover up the fraud that he is alleging in the lawsuit. He says that he does not need a conservator, and if anyone should have that role, it would be his wife Nydia.

The lawsuit filed by Cepeda offers a glimpse into why he believes she wants conservatorship, saying he doesn’t have the capacity to understand the nature and consequences of his remarriage, nor his decision to remove Camille as power of attorney and grant it to Nydia.

The suit alleges that Camille was opposed to the marriage from the start and even suggested they stage a fake ceremony that would not be legally sanctioned.

Cepeda’s lawsuit seeks damages, legal fees and demands that Camille return his memorabilia and all financial records she has allegedly refused to provide to account for how she handed his money. The suit also cites a $62,000 withdrawal to pay Cepeda’s tax bill, which was not actually paid. The filing says she was negotiating with the IRS, but she will not provide the documentation that he needs to settle with the government. Nor did she pay a medical bill for $6,800, although she did cash a check from the insurance company that was sent to pay for it.

Cepeda remains hopeful that the entire matter may be settled, before the case returns to court.

“It’s very painful,” Cepeda told a reporter. “I love my family. I love my kids. But this is life. You have to do what you have to do.”

Reference: San Francisco Chronicle (June 26, 2020) “Giants great Orlando Cepeda denies having dementia, sues daughter-in-law for fraud”

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What Sparks the Contesting of a Will?

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Baseball Champion Sues Daughter-In-Law, denies having Dementia

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