Estate Planning: Our courts have held that there must be probable cause to bring a challenge in order to avoid a “no contest” penalty.
For many years William and his mother were not on good terms. Two or three years before she passed away they reconciled their differences. She told William that she had left him only a small inheritance in her will, but that she intended to “fix it” so that he would receive an equal share with his brother and sister. She died a couple of months ago without updating her will, leaving the siblings 45 percent each, and only 10 percent to William. The will includes a clause that if it is challenged, William can be disinherited. Is there anything William can do to receive a larger share?
It is wonderful that William was able to reconcile with his mother. It probably took a great weight off of both of them to have repaired that relationship. Unfortunately, the chances of increasing William’s inheritance are not good. A verbal statement that one wishes to update her will, by itself, is not enforceable. The law of wills is still very formal, requiring that it be in writing, and if typed, witnessed by at least two persons. If handwritten, witnesses are not needed. There is no such thing as an oral will, and a verbal promise to leave assets is not enforceable.
If William challenges the will and the court finds the challenge was not in good faith, then the court will enforce the “no contest” clause. Our courts have held that there must be probable cause to bring the challenge in order to avoid the penalty.
Example of Probable Cause to Challenge
If William legitimately believed that his mother did not have mental capacity when she created the will, and he had legitimate medical proof, then the court would likely find William had probable cause for a challenge and would not enforce the penalty.
However, if William brings the challenge simply because his mother promised to leave him more than she did, but never updated the will, the court will find that William does not have probable cause for the challenge and he will lose your 10 percent interest.
One final note in regard to a potential agreement with the siblings to divide the estate. It may be possible that the siblings might acknowledge that their mother intended to include William with an equal share.
If the siblings agree that William should receive an equal share, Arizona law specifically allows beneficiaries to enter into a written agreement to change the distribution provisions if they all agree. However, if they do not agree, then unfortunately there is really nothing you can do about it.