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Will Contest Tip: Outlandish, Unsubstantiated Claims are Not a Substitute for Relevant Facts, Applicable Law

Sadly, not all family interactions are warm ones. Animosities between relatives may fester for years and eventually spill into the courtroom. While much of what fueled the case of In re the Estate of William G. Wenkman appears to have been the strong emotions of one group of children, the Wisconsin Court of Appeals’ ruling in the case nevertheless manages to provide some excellent information about going about, or defending, a will challenge.

William Wenkman and his first wife had four children: Marcia, Mark, Gregory and Anne. The battle between the Wenkman family members first entered the courtroom when Anne filed an elder abuse complaint against William and Marcia, accusing them of “trying to kill” William’s second wife. Shortly after Anne filed her action, William changed his will to make Marcia his primary beneficiary, and removed Anne. A few weeks later, William died in a plane crash.

Anne and her brothers challenged the will, arguing that Marcia exerted undue influence over their father. The trial court rejected this claim, and the appellate court upheld that ruling. The Court of Appeals, bypassing Anne, Mark and Gregory’s irrelevant and often personal invective against opposing counsel and the trial court judge, explained that undue influence requires proving four things: (1) that the testator was susceptible to undue influence; (2) that the influencer had a reasonable opportunity to exert influence over the testator; (3) that the influencer was of a nature that she would exercise such undue influence; and (4) that the will’s terms constituted an outcome that the influencer wanted.


In Wenkman’s case, the undue influence allegation failed on several fronts. Wenkman’s attorney offered evidence that, although an octogenarian, William was strong-minded, independent and a full participant in the creation of his most recent will. Marcia, the alleged undue influencer, was in Florida the entire time William was discussing and executing the new will, severely impairing her ability to influence her father. Finally, the court noted that William’s sons received the same amount (nothing) in his previous will as in his current will. The new will only reduced Anne’s share, which the court decided was a natural result of Anne’s accusing her father of trying to kill his wife.

The sad tale of the Wenkman family does have lessons in it. Making over-the-top claims is rarely a good technique for litigation success. You cannot always avoid an estate contest, no matter how well your plan is prepared. Working with an experienced, capable attorney has many advantages when engaging in estate planning.

Not only can your attorney guide you through the estate planning steps, he or she can testify about your goals and preferences, and your mental acumen after you’re deceased and cannot speak for yourself. William Wenkman’s attorney was able to help protect his estate objectives, both before and after death. To get the finest in estate planning advice and representation for your estate planning needs, talk to a Madison estate planning attorney of Krause Donovan Estate Law Partners, LLC. They can help you get the peace of mind of knowing you’ve taken the steps necessary to accomplish the estate planning goals you desire. Contact Attorney Daniel J. Krause or Nelson W. Donovan today.

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