Contesting a Will

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“The death of someone you love leaves you grieving, and you may not receive what you feel ought to be yours in the Will. These are some things you should know before considering contesting the Will.”

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Contesting a Will

Even though contesting a will can be challenging, you may find it beneficial if you still need to sign or receive what you expected. Sometimes, parts of an Estate Plan can create tension, even though they aim to help us deal with loss. However, developing a comprehensive, comprehensive Estate Plan is still essential. When you think there’s something wrong with a will, it’s even more complex. The following information will help you contest it.

 

Why contest a will?

The contesting of a will occurs after the testator’s (the person who made the Will) death. Usually, a person who believes they should have participated in the Will contests a will.

Contesting a will depends on your state’s laws, but the concept is the same. When a choice appears in probate court, interested parties discover it. To be considered valid, the court must consider the heirs, beneficiaries, worth, and assets of the deceased within the specified timeframe.

 

Reasons to Contest a Will

Lawyers often face challenges in balancing emotional and psychological issues with legal reality when dealing with will contests that arise from complex family dynamics. Constantly, parties in these cases are fighting over assets and power dynamics, especially when one sibling is designated, executor or personal representative.

It is possible to contest a will for a variety of reasons, including:

  • The desire for greed or envy
  • Insufficient understanding of estate planning
  • Angry at other beneficiaries (such as siblings)
  • Will and the decedent’s statements contradict each other.

You can contest a Will, but you must follow specific steps and do it at certain times. So the safety of your loved ones, let’s discuss whether you have a good chance of contesting a Will and how to create your rock-solid Estate Plan.

 

Who can contest a Will?

The right to contest a Will does not apply to everyone. You can commence the legal process if you are close to the deceased or have a close relationship with them. For example, if you were family, if they treated you as if you were family, if you cohabitated or had been together, if you died in a Will, or if they remembered you from your past or current life.

If you want to challenge what appears in a Will, you must have an apparent reason. For example, you cannot dispute what is written in a Will if you disagree.

Challenges to Wills may be possible if:

  • There is no validity to the Will, in your opinion.
  • The Will seems fraudulent to you.
  • Undue pressure caused the Will to come into existence.
  • According to you, the person didn’t have the mental capacity to write the Will.
  • This type of claim refers to reasonable provision when you believe a Will has not been provided for an individual legally entitled to it (like a spouse or child).

It is generally a good idea to seek legal advice and act quickly as soon as possible. Depending on the kind of claim, you may need more time to file it. Contesting a Will is possible after probate has taken place and the estate has passed through the hands of its beneficiaries, but taking action before that can be more uncomplicated and more straightforward.

 

Contest a choice for many reasons.

Some think disputing a will is just a matter of dramatic family arguments or legal battles over celebrity estates. However, you might contest a choice for many reasons, and not just on family disputes.

 

Lack of testamentary capacity

With testamentary capacity, someone can make a Will. Anyone who makes a Will must fulfill the following requirements:

  • Having an understanding that they are making a will
  • The Will specifies how the estate will settle after their death.
  • Understand the assets and value of the estate.
  • Find out who might be owed money from their estate (beneficiaries)
  • A mental illness that impairs their decision-making ability is not allowed.

It is essential that someone is of sound mind and understands the impact of what they are doing before making a valid will. People may begin to lose mental capacity as they near the end of their lives, so they must wait to change their Will or draft a new one until a capacity assessment has shown they are capable. Our testamentary capacity page can provide more information.

 

Lack of valid execution

A Will is only valid if it complies with the appropriate legal requirements. The following criteria must be present for a Will to be good:

  • It’s written
  • The testator (or testatrix for women) signs it or someone else on their behalf at their request.
  • At the signing, two witnesses are present.
  • Upon signing the Will, the testator intended to make it official.

For a Will to be valid, a solicitor or writer must ensure they create it correctly. If an invalid Will turns out to be the case, it may also be possible to bring a professional negligence claim on the estate.

A lack of knowledge and approval occurs when the person who made a Will must be aware of its contents. Someone may have given a significant gift to the individual who assisted with preparing the Will, which may raise suspicions.

There is a difference between this and a lack of testamentary capacity because the person might be capable of making a Will but needs to realize its full extent. Having undue influence means that you are under pressure or coerced into writing a Will or changing a Will that already exists.

To successfully challenge these grounds, you must prove that undue influence occurred. For claims of undue influence, we need a high standard of evidence, and the claim must rest on the fact that the person making the Will was manipulating or taking advantage of the estate. To prove undue influence, you must prove that there is no other reasonable explanation for Will’s terms.

 

Fraud or forgery

Using the following examples.

  • Forgery – forging someone’s signature on a Will in their name
  • Fraud – the testator removes another beneficiary from the Will by giving false information about them.

 

Steps to Contesting a Will

Consider contesting a Will if you believe it is invalid for any reason.

 

Steps to Contesting a Will.

 

Having standing to contest a Will requires that you have legal permission to do so. It is only possible for some people to challenge a legal document such as a Will. Essentially, you will only have grounds to contest a Will if you stand to benefit or be affected by its outcome.

 

Keep time in mind

When you contest a Will, you only have a little time to examine it, even if you have a valid reason to doubt it. To find out how long you have left to contest the testator’s Will, you should check state laws where they lived when they or passed away. Some states give you only a few weeks, while others give you years.

If you intend to contest a Will:

If you don’t want a Will, you can’t contest it. Consider the valid reasons we shared above. Here are a few things that will be helpful for you to contest a Will.

  • Testators needed more mental capacity than others when creating their Wills.
  • Inadequate signing and legal formalities invalidated the Will.
  • The fraud led to the creation of the Will.

 

Steps to assist you in contesting a will.

The following steps will assist you in contesting a will and improve your chances of success:

 

Determine validity

If there was fraud or undue influence at the time of signing, assess if the signatures were authentic or if there were undue influences. Consider the testator’s mental capacity.

 

Research

Check your state’s laws and make sure the Will has no no-contest clauses. If any clauses say that anyone contesting the Will will face repercussions, you must consider the risk and reward implications.

 

File a petition

To contest a Will, you must file a petition in probate court before challenging a Will, which an estate planning attorney can do.

 

Collect your evidence

You’ll get a court date after you file your petition. Use your time before that date to gather any evidence you can.

 

Go to court:

If you are going to court, you must prove the Will is invalid. You can do this with witnesses, statements, and documents.

 

Cost of Contesting a Will

Before you go through the legal process, consider your case’s cost, even if you have a good one. It will cost quite a bit if you hire an attorney. And remember, there are no guarantees that you will succeed.

According to some estimates, contesting a Will can cost between $10,000 and $50,000. Of course, the size of the estate will play a significant role in how far you wish to go.

 

Before a person dies, can we contest a will?

It is only sometimes the case because the testator/testatrix might change their Will before they die, so you should contact the testator/testatrix if you have concerns about the terms of the Will or the circumstances surrounding its creation.

Statutory wills may not be valid for people who have lost mental capacity. If the terms of the Will don’t suit you, you should challenge them while they are still alive.

 

What is the no-contest clause?

No-contest clauses are optional clauses that some will-makers include in their wills. No-contest clauses disinherit anyone who challenges a choice.

In some wills, heirs may not contest a will simply because they are unhappy with their inheritance. For example, a daughter may contest her father’s Will if she wants a larger share of his estate.

 

In the case of a ‘no-contest clause, what happens?

A person setting up a trust or a Will can include a ‘no contest’ clause to prevent it from being challenged once they are gone. No contest clauses are usually specific to an asset or person – if they suspect someone might claim something they do not want them to have, they might include one.

If the no-contest clause proves to be invalid, the no-contest clause will not apply to the Will. It is still possible to challenge a Will that has a no-contest clause. If you’ve already invested in the estate and then filed an unfavourable claim to the estate, then you could not claim your investment based on the conditions of the non-contest provision. If the challenge is unsuccessful, the no-contest clause remains valid. We will advise you once we have discussed your case with you on the best course of action. Call us today to learn more.

 

Deadline for contesting a will.

The statute of limitations limits your ability to contest a will after probate begins. It varies from state to state and can range from 30 days to several months. It begins the day the Will registers with the probate court, not when it takes effect.

 

Does contest a will have a statute of limitations?

A statute of limitations is a period within which you can contest a will; once that period expires, you cannot examine the Will. States have different statutes of limitations. For instance, in Illinois, you can challenge a will for six months after it goes into probate.

When a will passes probate, the validity of the Will is valid, then Will’s administration and debts are paid, and the deceased’s estate passes to heirs and beneficiaries. When a will fails, then it challenges its validity legally.

 

Final thoughts

Contesting a will requires that you consult an estate attorney. A Will Contesting is expensive and only sometimes works. Before making a contest, knowing how likely they think you are to win is helpful. Estate lawyers can provide legal advice on how likely you are to win the case.

Alec Stroup

ALEC STROUP Associate Attorney  Roseville Office  1-866-471-6981  info@attorneysre.com Alec...

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