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Contesting a Will

Many people are uncomfortable with the idea of death, let alone talking about it or having to plan for their own. But if someone neglects to make plans for handling their estate before they pass, or plans incorrectly, it can create a lot of stress and confusion during an already difficult time for their loved ones. A will, which is a document that describes what a person wants done with their assets after they die, is a common, legally-enforceable estate planning instrument to divide a person’s estate between certain people or organizations.

Though a will can make it easier to handle someone’s affairs after they pass, wills aren’t always perfect. If you’ve recently lost someone and suspect that there’s a problem with their will, you may have legal grounds to contest it.

What Does it Mean to Contest a Will?

A valid will, like any other type of contract or legal document, needs to meet certain criteria. If someone has a reason to think a will that doesn’t meet the right legal requirements, they can contest the will and argue that it does not actually represent what the departed wanted it to mean. If they can successfully convince a court that the will was not made correctly or is not being interpreted the way it was meant to be honored, the court may adjust some terms of the will or declare the entire document invalid.

If a will is rendered invalid, asset division will generally operate as if there had been no will at all. The exact consequences of this ruling will vary by state, as each state has their own laws that define the sequence of inheritance and who is entitled to inheritable property. But typically, an invalid or non-existent will can mean that the deceased’s immediate family members receive everything.

Why Would I Contest a Will?

Often, when a will gets contested it’s because there was a significant flaw in the document that led a potential beneficiary to believe the terms of the will don’t reflect the true wishes of the deceased. If, for example, you think a loved one was tricked into leaving you out of their will and you feel you’re owed something from their estate, you may decide to contest the will for a chance to get what you think you’re supposed to have.

To contest a will, you need to have legally sound reasons for challenging its validity and comply with state laws. These reasons are usually because:

  • It was created or signed fraudulently: If someone misleads the will’s owner, who is known as the “testator” intentionally or accidentally, and the testator therefore, made an uninformed decision they would not have made otherwise, it could be reasonable to contest the will on the grounds of fraud. Likewise, fraud also occurs if someone forges a signature or alters elements of the will and lies to the testator before they signs it, the will may not be valid.
  • It was created or signed under undue influence or duress: If someone felt forced to change their will because of some kind of threat or danger, a court could consider this undue influence and render the will invalid. Likewise, if someone had an extreme level of undue influence over the person’s decisions and convinced them to make a will differently than they would have on their own, that could invalidate a will as well.
  • It was created with technical errors: If someone made critical mistakes in drafting or executing the will, the will might not be able to stand as is. Creating a will is a highly regulated, procedural process, and deviating from those guidelines can make the will vulnerable to dispute. Anything from an incorrect number of witnesses at the signing of the will to certain spelling errors could call the will’s strength into questions.
  • It was created or signed without sound mind: This is referred to as testamentary capacity. If someone made or changed their will during a time they were cognitively impaired or otherwise lacked the mental capacity to make decisions for themselves, it may alter the will’s standing. This can be a common problem with older people experiencing the effects of age-related cognitive decline and dementia. If they were no longer able to fully understand the changes they were making or the consequences of those changes, their will might not be enforceable due to lack of testamentary capacity.

How Do I Contest a Will?

In most cases, state laws dictate that the only people who can contest a will are people mentioned by name in the will or those who would be the lawful beneficiaries if no valid will existed. Say you lived in a state where estates’ default beneficiaries are the testator’s children, but you’re not listed in your mother’s will after she passes. You may decide to challenge the will so you have a shot at getting the assets you would have if the will never existed.

To officially contest the will, you’ll need to file a claim with the correct court, which requires precise legal paperwork to start the process. In nearly all cases, you can only take action while the will is still in the probate stage. The court will then hold a hearing where you and other interested parties impacted by the will can present evidence and testify as to why you feel a will is valid or invalid.

Contesting a will can take significant time — months or even years — to fully complete. You’ll need to show sufficient facts based on the law to prove the will needs to be altered and disregarded. The court will generally err on the side of enforcing a will unless they have a strong reason not to enforce it.

As such, it may be in your best interest to work with a local attorney who has experience in contesting wills. They could help you evaluate your case and whether the law supports a claim to challenge the will.

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