Wills Gone Wild: How to Contest Your Loved One's Final Wishes

In this episode, Peter Klenk dives into the world of wills—what they are, how they work, and common misconceptions. Learn how different states handle probate, why some systems are more frustrating than others, and what that means for your loved ones. 

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Transcript

Hello everybody. It's Peter Klenk at Klenk Law, and we're here to talk about death and taxes—everybody's favorite subject. And today, let's go nuts. Wills gone wild.

How to contest your loved one's final wishes.

So what are we talking about? Well, will contests—but it could also be a trust contest. It could be all sorts of disputes: naming somebody transfer-on-death that you want to challenge, a beneficiary designation on a life insurance policy. All these things—there is a system for you, if you're an interested party, to contest.

So let's talk about that.

First, what are all these things? They're things done by a person so that, upon their death, their asset passes. The presumption is that what they did is valid. Can that presumption be overcome? Yes.

So how do you do it? Do you call up the bank? Do you call the 401(k) company? Do you call your brother?

No, you don't do that. There's a system. And in every state, there's a very specific court to oversee these types of disputes because they're very specialized. Yes, you can imagine that that's a very unique set of facts that come up, and you need to have a judge to oversee these things.

In general, it's not a jury trial sort of thing because what you're dealing with is money. You're going to a court called a court of equity. It's a court about putting the money in the right hands. It's not about deciding who's naughty, who's nice, or putting people in jail. It's about making sure that the process is done right so that the deceased person's assets end up where they were legally supposed to.

Now, a lot of folks think, “Well, a will contest is just about a will.” That it doesn't have anything to do with life insurance or the 401(k) that doesn’t go through probate. That’s not true. There are plenty of folks out there who will forge 401(k) beneficiaries or go online and change transfer-on-death designations.

There are plenty of people who act as agents under a power of attorney for their parents and empty bank accounts before they die. So even though the will says everything transfers to the kids equally—well, there’s nothing left to transfer. The account’s empty, right? All of those things, we can challenge.

Now, these things are reflected as your parents' last wishes, but they really need to be what they actually wanted. Sometimes, final wishes are stated when the person had Alzheimer's or dementia. Maybe your siblings lied about you, and your parent was misled and under misconceptions about what was really going on.

It could be that they were threatened. Sometimes, parents rely on someone to take care of them, and they’re in a weakened state—physically ill—and the person says, “Well, I'm just going to leave unless you give everything to me and not to my sister.” That's a threat. That's undue influence.

It’s like holding a hammer to somebody. That person thinks, "You're going to die." So someone could say, "What was their wish? They didn’t want me to leave—they wanted me to stay so they wouldn’t die." Oh, okay. Right?

But these things are all challengeable.

Now, I’m going to go through, let’s call it, the 10,000-foot view of how these things work. There’s a lot of detail, and these are the kinds of things you need to talk to somebody who focuses in this area. At our firm, we have three attorneys, and it’s all they do—will contest-related matters. We don’t sue anybody. We don’t do divorces. This is our world. This is what we do.

So what do you do first?

First, you have to be an interested person. You might know that your neighbor was taken advantage of and someone forged a will to take their house. But if that will didn’t affect you—say it went to the person's child or nieces and nephews—it’s not your business legally. It might have been horrible, but only people with legal standing can bring these challenges.

Otherwise, the court would be flooded with people saying, “Well, that’s a nasty thing that person did. I want to bring it to a judge.” But if the rightful heirs don’t care enough to come forward, then the judge has better things to do.

You have to be someone who stands to gain something if successful—then you're an interested party.

So for example, if the will excludes you, but a prior will gave you an equal share, you’re clearly an interested party. Or if you were supposed to get a share of the estate but your sibling emptied mom's bank account using a power of attorney six months before she died—are you interested? Yeah, because if that money came back, you'd get a share of it.

So first, you have to be an interested person. And if so—there it goes.

Look, we get calls throughout the year where someone says, “My husband got screwed.” But if your husband doesn’t care enough to call us, and doesn’t want to get involved, you’re just the spouse. Again, you might be mad—and rightfully so—but the person who was wronged has to be the one to come forward.

If that person is a minor child or is incapacitated, can a guardian or agent come forward for them? Absolutely. Somebody can act on their behalf, but it has to be someone with authority to do so.

Once you’re an interested person and you think something went wrong, what do you do?

Well, again, we don’t go to the cops. They know there’s a court for you to go to. They have plenty of actual criminals to deal with, so they expect you to handle this yourself.

In this system, you're like a creditor. You’re coming forward saying, “Hey, I should get some of this money.” And that means it should be worth your time. That’s why, in this system, you pay the bill—just like a credit card company. They don’t chase people who owe four or five thousand bucks—it’s not worth it. Same for you. If you're fighting over a couple thousand dollars, yes, you can go to court, but you’ll pay us way more than that.

So the burden is on you to pay. If it's something small, the courts don’t want to get involved in disputes like, “My sister pocketed the cash from under mom’s pillow.” Not worth the system’s time.

You have to feel comfortable covering the cost going forward. Could you be reimbursed at the end? Possibly. It’s up to the judge. But you should walk into it thinking, “I’m paying the bill,” just like an insurance company would.

So, first—you must be an interested party. Second—you need to know what happened and believe it’s worth spending time and money on. Because it will take time. It won’t be fun. But if you want the truth known, and you want the asset you deserve, we move forward.

What’s the process?

We first make you a party in interest. If you just think your sister did something wrong, you're just someone with a suspicion. But once we file a petition challenging documents or asking for an accounting—depending on the situation—now you're a litigant. And as a litigant, the court recognizes you. You have rights.

The judge can allow us to subpoena documents, depose witnesses—all the stuff you see on TV. Because now, you're officially in.

This process is slow and methodical—for a reason. The information is with banks, doctors, and witnesses who must be scheduled. The pieces fall together gradually.

You’ve seen this on TV—yes, that’s TV, but it gives you the idea: you find one thing, it leads to another call, another piece of information, then a bank account somewhere. It's a process.

Because in the end, what do we need to do? If it doesn’t settle, we go to a hearing. The judge holds a trial.

And even if the judge thinks you’re completely right—that your sister stole money—if we don’t have the evidence, the judge can’t help you. So we put the case together and present it the right way. In a format the judge will listen to. That stands up to cross-examination.

Then, the judge has to say, “Yes. This person stole.” And take action. Maybe surcharge, maybe recover funds—any number of remedies.

So it’s a methodical process, and at the end, hopefully you get what you were seeking.

You want someone who knows this process. We kinda love it when someone shows up with their personal injury attorney. Not dissing PI attorneys—they just don’t know how to handle a will contest. They scream and yell, and the judge looks at them like, “What are you doing?” There's no jury. The judge has seen it all. They just want the evidence so they can move on.

So work with someone familiar with the process to get where you want to be.

This is all we do. It’s the only area we’re in. And Glenn—I’ve known since we were in the Navy together, in the JAG Corps—he’s an excellent litigator. He does a great job. I’ve been doing this for a very long time too. I can help you walk through it and make sure you understand the process.

So that’s it. That’s a very general outline of the process, but I think it gives you a good overview. In your case, it’s going to depend on the facts. Everyone’s different. The witnesses are different. The documents vary. The medical records are unique. So it always depends on what you have—and what path we take to get you where you want to be.

That’s it. If you’d like to pursue a case, give us a ring: 215-790-1095. That’s our main administrative office, and you’ll be connected with the right people. Happy to help.

This has been another little discussion about death and taxes and all the fun stuff we do here at our firm. You guys enjoy yourselves—and like and subscribe—so next time I post one of these, you’ll find out and we can talk again.

Bye now.