giving up your rights to contest a will

[shue64]

my sister-in-law was left the entire estate of her parents in NY State, leaving my husband and his brother out of the will totally....

she is stating that she wants to "avoid the long process of a contested will," so if both brothers agree to sign away their rights to contest, she will give them each a "portion" of the estate....

to avoid any empty promises, is there a way we can be sure that she will follow through on her "good intentions" before they sign away their rights? for instance, would it be legal for her lawyer to draw up papers specifying an exact amount she will give them if they give up their rights to contest?

any thoughts appreciated. thanks.

 

[ALawyer]

There are 2 issues:

1. What real chance do you have to successfully contest the Will, and
2. If you are successful, what would you get?

That determines your negotiating posture, and how much you should be paid to give up your rights, as weak as they may be.

What you really need is a lawyer representing YOU to at least look at a photocopy of the the existing Will (looking at the Will as filed with the Probate Court, if it has been, would be even better) even though it leaves you out, and then assess the likelihood of being your able to successfully contest the Will. That's something that usually can be seen from the face of the Will.

You'd need grounds to be able to successfully contest the Will, such as an error in execution, omitting any reference to you, forgery, fraud, mistake, undue influence, etc. and nearly all Will contents fail. Some of these things require lots of investigation but the most obvious things are often clear from the document itself.

Will contests delay things, cost money, and create resentment. So often the lucky relatives who inherit it all are willing to "pay for peace", and if that is all it is, consider it a gift "found money" coming to you for doing nothing but what you would have done any way. The relatives who do get it all can speed things up, remove a cloud and feel less guilty or even self-rightous and tell their friends -- "we gave the others something even though we did not have to".

By the way, there may be things OUTSIDE the Will, such as insurance or 401(k) or IRA assets on beneficiary designations, or property interests like joint tenancies, that pass by operation of law. So make sure that the relatively small payment you get for waiving a Will contest is not waiving your rights to things you would otherwise receive outside the Will.

But get a lawyer to represent YOU!