Besides an action to contest a Will, a frustrated beneficiary may attempt to proceed with a tort known as "intentional interference with an inheritance." In some cases, this may be the ONLY way in which the potential beneficiary can proceed.
In the Nemeth case (425 N.E.2d 1187), for instance, the decedent's stepdaughter (not an heir of the decedent) filed an intentional interference with an inheritance action against her step-sister because a successful Will contest would have done her no good.
A number of cases have followed, trying to explain the limits and ramifications of the tort. A recent case involves the estate of a woman named Grace Ellis (found here as a PDF). The case was brought by the Shriners Hospital for Children, beneficiaries under a previous Will, against a man named James G. Bauman (who was named as sole beneficiary and executor under the Will that was admitted to probate). Ms. Ellis evidently died in 2003, but the Shriners took no action to contest anything until 2006. Maybe their itty-bitty cars were in the shop all that time? Or (more likely), perhaps the Shriners had no idea that they were named as beneficiaries in a previous Will.
Anyway, the Shriners file their suit, making the same sorts of allegations as you might see in a Will contest (lack of capacity and undue influence). But, of course, they can't file a Will contest, because Will contests must be filed within six months after the Will in question was admitted to probate.
Can you use the intentional interference with inheritance tort to get around the six month period, since it isn't a Will contest? No, says the court.
"I, and others in my age group are getting older"
Governor Stickland along with state and federal representatives, announced the launch of the "Own Your Future" campaign. via WTVN-AM Columbus
This short blog entry on Slate regarding John McCain's income taxes is interesting. Not for what it says about Senator McCain's income, but for the following:
John McCain’s released two years of tax returns today to little fanfare. We learn that he earned $405,000 in 2007. We learn that he’s giving his ex-wife $17,000 a year in alimony. What we don’t learn, though, is how much he’s getting from his current wife. That’s because the returns don’t include the assets of Cindy McCain, whose beer fortune is estimated at more than $100 million—a reminder that McCain would be the first president to have signed a prenuptial agreement.
The post goes on to wonder if voters might object to Senator McCain because of the prenup:
Then there’s the moral aspect. In a race that has feature the thrice-married Rudy Giuliani, McCain’s marital situation doesn’t seem particularly controversial. But some Americans might look askance at a prenup, commonly considered leaving the door open for divorce.
I'm not sure about that. A recent poll (results here) doesn't seem to indicate that Americans hate the idea of prenups:
The Thomson West survey found that when asked if they would sign a
prenuptial or postnuptial agreement, American adults said:
-- Yes, definitely (14%)
-- Yes, maybe (27%)
-- No, probably not (21%)
-- No, definitely not (20%)
-- Not sure (18%)
While the question is "would you sign a prenup?" and not "would you vote for a presidential candidate who signed a prenup?", I don't see anything here indicating animosity for prenups per se. Only 20% said "no, definitely not," and I'd imagine that only those who feel the strongest about that "no" vote would view Senator McCain's prenup as a deal-breaker.
To me, Senator McCain's marital situation DOES seem like it might be a little bit controversial to social conservatives. The prenup isn't the problem -- the divorce of wife #1 in order to marry (younger, richer) wife #2 might be. The prenup only reminds social conservatives of the prior divorce.
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Clients often ask me, "why is probate litigation so expensive?" The main reason is that the law tends to behave like an unruly beast. Some questions posed to me are easy to answer -- if you want to know the requirements for executing a valid Will in Illinois, I can give them to you. But other questions are much more difficult to answer.
Take, for instance, pleading requirements for a Will contest. Most Will contests include allegations of lack of testamentary capacity (the person who signed the Will didn't know what he or she was doing) and undue influence (someone "forced" the person who signed the Will to do it). As you might imagine, there's a lot of proof required to win a Will contest -- that's as it should be. But what about getting in the door, and being allowed to prove your case through discovery, etc.? The first step in a Will contest is the filing of a petition. The second step in almost every Will contest is for the other side to file a motion to dismiss the petition, on the grounds that it "failed to state a claim for which relief can be granted."
There is no magic book to turn to in order to find out whether a petition will survive a motion to dismiss. Instead, attorneys have to look to caselaw:
Lack of Testamentary Capacity
Two very old cases -- American Bible Society v. Price and Anlicker v. Brethorst -- suggest that pleadings for lack of testamentary capacity don't have to be very in-depth. But then there's this curious Estate of Sutera case from the 1st District in 1990. It seems to suggest that conclusory statements are insufficient, but it's hard to tell. On the one hand, a very well-known book on Illinois probate states that Sutera does not apply to the issue of testamentary capacity generally, but applies only in cases where the petition includes allegations of an "insane delusion." At least one subsequent court case implies the same thing. But Sutera never mentions the phrase "insane delusion"!
That being said, my experience in court has been that judges still view American Bible Society and Anlicker as setting forth the law on pleading lack of testamentary capacity. But I suppose it depends in large part on how the attorneys frame their arguments, and the judge's take on the caselaw. It is, however, an attorney's job to make sure he or she understands and can argue for or against any of the cases that may come up at the hearing on this issue. And reading and understanding cases takes a LOT of time.
Undue Influence
Undue influence requires more in-depth pleading, but there appear to be (again, "appear to be," since there's no answer set in stone) two ways to approach it:
1. You need to make a "specific recital of the manner in which the free will of the testator was impaired." OR
2. You need to show that the person you are accusing of undue influence had a fiduciary relationship with the person who signed the Will (aka the Testator), that the Testator depended on the person and reposed trust in the person, and that the person "prepared or procured" the Will.
Of course, no case says the above, and clearly indicates that you have two paths to take in proving undue influence for motion to dismiss purposes. Again, this is something of which the petitioning attorney must convince the judge.
