How and When to Contest a Will
November 26th, 2013
Despite the best efforts of wills and trusts lawyers, there are times when a will is challenged. There can be many reasons why this happens, and it’s up to the courts to determine what is most appropriate in these situations. Some of these include:
- The will wasn’t signed
- The person creating the will didn’t have the capacity to legally sign the will
- He or she was unduly influenced into signing it
- The will is fraudulent
- The person challenging the will feels that a different a different personal representative should be chosen
None of these reasons for challenging (or contesting) a will is to be taken lightly. In order to prove that the will is invalid, one of these reasons needs to be proven in a court of law. The idea of simply challenging a will because you don’t like the contents may seem reasonable; but if you can’t prove one of the above factors for invalidating it, you may very well be wasting your time and resources.
Wills and Trusts Lawyers
If you do wish to challenge a will, you will want to take your concerns to a lawyer who has experience in your state’s wills and trusts administration. He or she will give you some insight into whether or not you have a case. Be sure to choose a reputable attorney, so that you don’t end up wasting your money on a no-win case.
The lawyer will help you determine if you are a person with “standing.” That means that you need to be someone who actually has a financial stake in the outcome of the will. Someone in that position would include a child who stands to receive considerably less than siblings (or who has been cut out altogether), a potential beneficiary who believes too much of the estate has been given to a third party (such as a charity), or someone who was included in an earlier will but finds that the new will treats him or her much more unfavorably.
Challenging the Will
In order to challenge a will, the person in question needs to file the contest with the local probate court, and there is a set time limit for doing so. Because estate law changes frequently, you should consult a wills and trusts lawyer to be sure of what the current timeframe is. He or she will help you decide if you want to pursue the case and to file the appropriate paperwork with the courts.
After reviewing the will, the courts will determine if all or part of it should be considered invalid. If the whole document is found invalid, then the estate will be distributed according to the laws of probate, unless there is an earlier version of the will that the court finds to be valid. Keep in mind that these may not actually be more favorable than the original contents of the will and will take a considerable amount of money from the overall estate before it is dispersed.
Contact a Will and Trust Attorney
If you have questions about how to contest a will, please feel free to contact our will, trust and probate attorneys to schedule a free consultation with the mention of this article.