My friend, who had no children or wife, died suddenly. His sister is contesting his will. Will she succeed?

By Quentin Fottrell

'He did not intend to leave anything to his sister, his only living relative'

"He had told my husband and me that he did not intend to leave anything to his sister, his only living relative." (Photo subject is a model.)

Dear Quentin,

A friend died suddenly six months ago. He had told my husband and me that he did not intend to leave anything to his sister, his only living relative. He has no spouse or children. Someone closer to the situation told us she is contesting the will. In the probate filing, which is in the public domain, she is listed as "interested person." There is also a personal representative. They are represented by the same lawyer. That doesn't seem right.

What do you think?

Trying to Preserve My Friend's Wishes

Related: My brother is the trustee of our parents' $10 million estate. He's threatened to bleed the estate dry. What now?

You can email The Moneyist with any financial and ethical questions at qfottrell@marketwatch.com. The Moneyist regrets he cannot reply to questions individually.

Only someone with legal standing - an executor, heir, creditor or beneficiary, for example - can typically file a petition in a case such as this.

Dear Friend,

Your friend's sister and the "personal representative" - likely, the executor of the will who is representing your friend's wishes as set out in his will - sharing the same lawyer would only amount to a conflict of interest for the attorney in question if the sister files a lawsuit to contest the will. If that happened, I assume the lawyer would decline to take the sister's case.

Only someone with legal standing - an executor, heir, creditor or beneficiary, for example - can typically file a petition in a case such as this. A friend of the deceased, in most cases, has no standing to complain about attorney conflicts. Courts expect the client who is impacted, not a third party, to raise potential ethical issues.

A conflict of interest would arise only if the sister formally contests the will or otherwise takes a position directly against the estate. The lawyer would be required to withdraw from representing one of the parties or, possibly, withdraw entirely. Until that happens, shared representation alone is not improper.

"When an executor or administrator has a personal interest in the estate, such as being a beneficiary, it can create a conflict of interest that may make it difficult for them to act impartially," says GP Schoemakers, a law firm based in Houston. Being an heir and a beneficiary does not alone mean an executor should be removed. However, mismanagement of the estate or failure to perform duties could be considered problematic.

A will can generally be contested among these grounds: lack of testamentary capacity, undue influence from a family member, and improper execution. The latter is often the easiest and most common way a will is contested and/or overturned. A person will often state they intend to disinherit a child or a sibling, in this case or, alternatively, leave them a small amount, or they might say any person who attempts to contest the will should be automatically barred from inheriting.

Statute of limitations

There are statutes of limitations to contest a will. The sister will have to act swiftly and hire a trust-and-estates lawyer. In California, for example, those deadlines are particularly short and, experts say, rigorously enforced. A will contest must be filed by the later of 120 days after the will is admitted to probate or 60 days after the contestant is served with notice of the court order admitting the will. If the will has not yet been admitted to probate, your friend's sister may raise objections, but once the probate order is entered, the statutory time limits take effect.

All that said, here's the harsh truth: It's extremely difficult to contest a will, and the burden of proof lies with your friend's sister. Sometimes, these third parties hope to slow down the process and hope that the estate or rightful/legal heir will settle in order to move on. I've received many letters where the case seems stronger than the one you describe; one reader wrote to say her millionaire cousin's nursing home coerced her into changing her will and selling her house. That looked to be a clear breach of ethics and fiduciary duty.

Lack of testamentary capacity is one relatively common reason that could make a will vulnerable to being challenged, and could also leave one open to undue influence, duress or fraud, at least in the eyes of the court. "Unlike other grounds for challenging a will, capacity disputes often involve deeply personal family dynamics, medical testimony and complex legal standards that can determine the outcome of an estate plan," says the Casiano Law Firm, which has offices in San Diego.

Many states also provide a surviving spouse with a minimum "elective" share - that is, the right to take a share of a deceased spouse's property. This serves to avoid the complete disinheritance of a surviving spouse. Some people might try to circumvent a spouse's elective-share rights by transferring property to an irrevocable trust, but they generally must survive a look-back period for such a maneuver to work. Obviously, that does not apply to your friend, as he died without a spouse.

But your friend's sister has her work cut out for her - and her own lawyer's fee to pay.

Related: My elderly cousin's nursing home coerced her into changing her will - and selling her house. She was worth millions. Can they get away with this?

Check out the Moneyist private Facebook group, where members help answer life's thorniest money issues. Post your questions, or weigh in on the latest Moneyist columns.

Previous columns by Quentin Fottrell:

'I'm in a financial mess': My income was cut in half. Do I sell my $600K home and kiss my 2.9% mortgage rate goodbye?

I found an out-of-state buyer for my grandmother's classic car. He wants me to cash a check. Is this a financial scam?

'I'm in California and plan to stay here': I'm 61, lost my job and live off my $425K IRA. My house has $650K in equity. Do I sell?

My son's credit-card company will write off $10K on a $25K debt. Should he accept or declare bankruptcy?

By emailing your questions to the Moneyist or posting your dilemmas on the Moneyist Facebook group, you agree to have them published anonymously on MarketWatch.

-Quentin Fottrell

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