Something we see all the time are members of blended families contesting the will. A former police detective who specialised in elder abuse has herself been accused of taking advantage of a man with dementia in order to secure his $4 million estate. Diane Miller, the man’s daughter, is contesting the will, alleging that she was in line to receive her father’s estate until he married Sue Campbell, who was 13 years younger, after a brief courtship.
Victor Calzaretta was suffering from dementia when he married Campbell and changed his will so that his wife was the sole beneficiary of his estate. Miller alleges that Campbell was familiar with the effects of dementia, from her years of experience as an elder abuse investigator, and that she used her expertise to take advantage of Calzaretta.
The lawsuit says that Campbell married Calzaretta “not because she loved him, but to get access to his estate. Campbell’s actions were taken for the improper purpose of financially exploiting an elderly demented man for her own financial benefit.”
Calzaretta, a former police officer and lawyer, had amassed an estate worth $4 million prior to his death. In 2003, he made a will leaving his estate to his second wife. If she pre-deceased him, the estate was due to go to his daughter. His second wife died in in 2004. Diane Miller was due to inherit his estate until his marriage to Campbell in 2011.
Calzaretta allegedly began to show signs of dementia in 2008, which slowly worsened over time. He was hit with two negligence claims and was sharply criticised by a judge for his lack of preparation in a case, all of which were symptoms of his worsening dementia.
There are several reasons why his daughter is contesting the will in this case.
- Mental incapacity – was Calzaretta of sound mind when he changed his will to leave everything to Campbell?
- Undue influence – did Campbell unduly influence Calzaretta to change his will?
- Family provision – is it fair that Calzaretta left nothing to his daughter? After all, when Campbell dies she may leave nothing to Calzaretta’s children, meaning they will miss out on their inheritance completely.
Can You Prevent Family Members Contesting The Will?
There are several ways this situation can be avoided; although you may never fully be able to prevent your will from being contested.
When making a will, you should seek advice from a specialist in wills and estates. Something they will always do is check for evidence of mental incapacity and keep detailed notes of whether they believe the will maker is of sound mind and knowledge when the will is executed.
A skilled lawyer will ensure the will maker is not be influenced by a family member or friend to make a will he or she doesn’t really want to. A specialist in wills and estates can give advice in making a will in a situation where there is a blended family. This will protect children from a previous marriage from losing their inheritance and reduce the likelihood of a bitter dispute upon the death of a will maker.
It is also important that you ensure you provide reasoning for all your judgements in the will. In most cases, people do not provide reasoning and the courts must use their own judgement to interpret why you provided certain people with your assets.
One good option is to utilise a testamentary discretionary trust, so that you have better control over how your assets will be divided. A testamentary discretionary trust is a type of trust created under a will, comes into existence only upon the administration of the deceased estate
Choose a beneficiary you trust to financially provide for your spouse and your children. A testamentary trust will protect your assets for your children from your first relationship. It’s tempting to assume that your new spouse will ‘do the right thing’, but we have seen this assumption proven wrong countless times.
You may create two testamentary trusts, one for your children and the other for your partner’s children. This is beneficial if both of you were to pass away at the same time, in a car accident, for example. You could also choose to divide the entirety of your estate between your children, your partner and his/her children. Or you may wish to exclude your step children. If you were to have children in your new marriage or partnership, you could also include them in your will.
If you need assistance in writing a will, contesting the will or if you have suspicions of undue influence, please contact us for your free 10-minute phone consultation. We are happy to provide advice in any situation, and if you need assistance in writing your will, contact us today. Our aim is to help create a will for your needs that will not get disputed in future years. At Estate Battles, our main concern is ensuring your will and your rights are upheld.