By Sarah Schmidt, Esq.
This scenario is unfortunately common, and it raises a number of questions: Was the will, or portions of it, forged? Was it a product of undue influence or other fraud? Or was it indeed the testamentary intent of the testator and he or she either changed his or her mind after the discussion with you or simply did not want to hurt your feelings by telling you the truth? These questions can be difficult to answer after some one has passed away. If you indeed believe the will was a product of fraud or undue influence you will need evidence to prove those allegations.
If your mother repeatedly assured you that you could expect an inheritance, though they may help, the statements your mother made to you during life, standing alone, will likely be insufficient to set aside the will. This is because “such declarations, standing alone, are not admissible as direct evidence to prove or disprove the genuineness of the will.” See Canody v. Hamblin (2018), quoting Samuel v. Hunter, 122 Va. 636, 95 S.E. 399 (1918). Only where testamentary intent is first found on the face of the will is extrinsic evidence, such as the declarations, “admissible as circumstances, either to strengthen or to weaken the assault, according to their inconsistency or their harmony with the existence or terms of the will.” Id. Furthermore, Virginia’s Dead Man’s Statute requires corroboration of such testimony when offered by an interested party. See Va. Code § 8.01-397.
Thus, standing alone, allegations that your mother told you differently will likely be insufficient. Once a proponent of a will proves that the statutory formalities of a valid will have been met, a presumption of testamentary capacity arises and the burden of going forward will be placed on you, the contestant to produce evidence to support your claims.
If you have been unexpectedly disinherited you should seek the advice of an estate litigation attorney as soon as possible. The time frame in which to contest a will is very short and you should act immediately to seek legal advice to see whether you have a case worth bringing.
Note* This article is referring to generally vague promises of a decedent as to how their will disposes of property and is not intended to address gifts causa mortis.
Ask Kit Kat – Sunk Costs Apply to Animals
Hook Law Center: Kit Kat, what do you mean by saying, “Sunk costs apply to animals?”
Kit Kat: Well, there is a psychological theory called the “sunk cost fallacy” which applies to humans, and now, apparently to animals. Let me explain. According to this theory, once someone has invested in an idea or paid money for something, for example, they are extremely hesitant to abandon their endorsement or activity. For instance, if you have paid a lot of money for a concert or Broadway show, but 10 minutes into the performance, you realize you hate the show, you still may stick it out until the end, because you have already invested so much time and money at this point.
Now new research suggests that animals operate the same way. In a study published July 12, 2018 in the journal Science, researchers from the University of Minnesota report observing the same phenomenon in rats and mice. The rats and mice were waiting for a reward of flavored pellets and persisted longer than normal, even when the reward was extremely delayed (varied from 1-30 seconds). Once they decided to enter the waiting zone for the pellets (though they had a choice not to enter at all), they did not exit before receiving the reward. Dr. A. David Redish, one of the authors in the study, further observed, “Even more important than the similarity among species was the study’s findings that sunk cost effects appeared only after the subjects had decided to pursue a reward, not while they were still deliberating whether to do so.”
Shelly Flagel, as associate professor of psychiatry at the University of Michigan, who was not involved in the study, said the research had “far-reaching implications across fields including education, economics, psychology, neuroscience, and psychiatry.” She clarified by adding, “Persisting in a behavior even though it has adverse consequences is reminiscent of the conduct exhibited by people with addictions.” This new knowledge may lead to better treatment methods for those who have psychiatric disorders, of which addiction is a prime example. It has much to say about what motivates people and animals and what doesn’t. Further research will elucidate whether this theory is operational in other animal species. (Eric Goode, “Mice Don’t Know When to Let It Go, Either,” The New York Times, July 12, 2018)
Distribution of This Newsletter
Hook Law Center encourages you to share this newsletter with anyone who is interested in issues pertaining to the elderly, the disabled and their advocates. The information in this newsletter may be copied and distributed, without charge and without permission, but with appropriate citation to Hook Law Center, P.C. If you are interested in a free subscription to the Hook Law Center News, then please telephone us at 757-399-7506, e-mail us at email@example.com or fax us at 757-397-1267.