Legal Question in Wills and Trusts in Pennsylvania

One of the great things about American (as well as problems with America) is that any person can sue for practically any reason at any time. This does not mean heirs who are cut out will win, but they absolutely have the right to sue.

A person can leave money to whomever they wish. However, others are not allowed to interfere with that right.

So, at the end of the day, the Court will look at:

1) Did the grandparent have capacity? If yes, go to #2.

2) Was the grandparent unduly influenced into making this bequest? (i.e. did the heirs who received the money unfairly convince the grandparent to give them the money) If the grandparent was unduly influenced, then there is a good chance that heirs who where cut out will succeed in their lawsuit.

If the grandparent is still alive, there are a number of measures that can be taken to minimize the chance of a lawsuit and win if there ultimately is a lawsuit.

Kevin A. Pollock, J.D., LL.M.

www.PollockAtLaw.com

P: (609) 818-1555

Licensed to practice law in Florida, New Jersey, New York and Pennsylvania.

Also, visit my blogs at:

http://WillsTrustsEstates.blogspot.com/

http://BaseballLaw.blogspot.com/

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You state 2 things which are may be mutually exclusive. Is there a revocable living trust or a testamentary trust (a trust created inside a will?

It matters in terms of ability to challenge the disposition. If there is a revocable living trust, then such trusts usually have what is called a pour-over will in that the will "pours over" any assets still owned by the individual at death into the trust. The trust will govern the disposition of assets and while trust language can be challenged, its not the same as a will caveat. There would be no right to challenge a revocable living trust by a non-included heir.

If the trust is included as part of a will, then its the will document which governs the disposition of assets and a will caveat can be brought.

While I agree with the views expressed by Attorney Pollock, I add a couple of points.

First, any document needs to be reviewed by an attorney. They have to review the whole thing.

In looking at the document, were the 4 heirs just not mentioned? Or was there language which says something like "I have chosen not to make provision for or disinherited A, B, C & D, not for lack of love and affection, but for my own personal reasons." It makes a difference. If the heirs were just not mentioned, it would depend on how else the will/trust reads, but perhaps an argument can be made that this was some kind of oversight or error. However, if the will was drafted by an attorney and clearly contains a disinheritance clause, then it is going to much more difficult to overcome this.

That brings up the points referenced by Attorney Pollock. If you can show that the will/trust was done recently at a time when your grandfather may have been sick or had Alzheimer's or dementia, then it may be possible to challenge the will if you can prove that your grandfather's condition rendered him incompetent such that he lacked the requisite capacity to make a will/trust. If this was done a long time ago when your grandfather was well, then you are going to have a much tougher time proving mental incompetence. The second common reason for challenging a will is fraud/undue influence by the persons who benefitted under the will. For example, if the grandfather lived with one of the children who was included, and that child got a lawyer to draft a will that excluded others and that child benefitted, then maybe there is a case.

Not mentioned by Attorney Pollock is the cost. Will challenges are very very expensive. While there are potentially 4 heirs with grounds to challenge (the 4 could hire 1 attorney and there would be a cost-savings) litigation is still very costly. You do not indicate what assets your grandfather owned at the time of his death or how these would be disbursed. You don't want to spend $10,000 to recover $5,000. So you have to think about what it will cost versus the time involved and what you stand to gain if the will or trust is tossed out.

I think you would benefit from paying a lawyer to review the will/trust and discuss whether there are grounds for bringing a will caveat, what it will cost, the likelihood of success and what you will get if you win. Remember, if the will/trust is tossed out then your grandfather may be considered to have died intestate. In which case your grandfather's children would inherit, not you, unless your parent was deceased.

And was the will or trust drafted by an attorney? When was the document executed? Recently?