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Prematurely Contesting A Parent’s Will

Prematurely Contesting A Parent’s Will
The contents of a person’s will and related revocable trust cannot be challenged in court until he or she has died, Maryland’s second highest court ruled last week in rejecting a daughter’s bid to revive an undue-influence challenge to her estranged and ailing mother’s decision to write her out of her will.

The Maryland Daily Record’s recent article entitled “Wills cannot be challenged until testator dies, Md. appeals court says” explains the Court of Special Appeals said a will or revocable trust is only a draft document until its drafter, or testator, has died. Prematurely contesting a parent’s will is likely a waste of time, according to Beck & Lenox Estate Planning and Elder Law.

As a result, those challenging a living person’s will or trust would be merely “presumptive heirs” who have no legal standing to challenge a legal document that’s not yet final.

The testator might replace the will with a new one, die without property, or the challenger might die before the testator,” Judge Andrea M. Leahy wrote for the Court of Special Appeals.

The appellate court’s decision was the second defeat for Amy Silverstone, whose legal challenge to her mother Andrea Jacobson’s will was dismissed by a Montgomery County Circuit Court judge for lack of standing.

Silverstone argued that the will should be declared void based on her claim that her aunt unduly influenced her mother. The mother suffers from dementia and memory impairment.

This undue influence led Silverstone’s mother, Andrea Jacobson, to change her will in 2018 to expressly “disinherit” Silverstone and her son, Silverstone alleged.

The mother’s new will stated that Silverstone and her son shall not “in any way be a beneficiary of or receive any portion of the trust or the grantor’s estate.”

The disinheritance came amid a falling out between mother and daughter, according to court documents.

Silverstone’s challenge to the will and related trust is prematurely contesting her parent’s will, the court held.

This confirms the importance of having, at minimum, a well drafted will in place. Without a will, when a parent dies, it may be easier for a son or daughter to inherit a portion of the estate even though the parent may not have wanted that. It is strongly recommended that anyone without a will, especially older adults, go see an estate planning attorney for advice.

Reference: The Maryland Daily Record (Dec. 12, 2022) “Wills cannot be challenged until testator dies, Md. appeals court says”

 

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