Challenging a will, also known as contesting a will, is a formal legal action seeking to invalidate a person’s will and distribute the deceased person’s assets differently. This process typically involves family disputes and requires substantial evidence to prove that the will was improperly executed.
Who Can Challenge A Will?
In general, there are two categories of individuals who have legal standing to contest a will:
- Beneficiaries under the current or a previous will: These are individuals who were named in the person’s current or previous will.
- Potential heirs-at-law: These are individuals who would have inherited something if the person died without a will, also known as dying “intestate”. In this case, state laws would dictate who gets what.
Before pursuing a will contest, it’s essential to consult with a legal advisor to understand the specific rules in your jurisdiction.
Why Would Someone Contest A Will?
Many circumstances may prompt someone to contest a will. Here are a few common triggers:
- Disinheritance of a child or spouse in favor of a friend, charity, or another relative.
- Unequal distribution of the estate amongst children.
- Sudden and significant changes to the will.
- Imposition of numerous conditions on inheritance.
- Behavior suggesting insufficient mental capacity at the time of creating the will or making changes to it.
How To Contest A Will
The process of contesting a will can be complex and time-consuming. Here are the general steps involved:
- Hire an estate planning attorney: The intricacies of contesting a will often require professional legal assistance. You can go here to find out more how an attorney can help you.
- File a petition with the state probate court: This is the formal notice that a person wishes to challenge a will. This procedure is sometimes referred to as a caveat proceeding.
- Evaluate the assets in question: For certain types of assets, such as retirement accounts or insurance policies, the deceased may have already named a beneficiary. In these cases, contesting the will might not affect how these assets are distributed.
- Appeal the probate court’s decision (if necessary): If a will has already gone through the probate process and someone disagrees with the court’s decision, they can file an appeal.
Before proceeding, it’s crucial to understand the specific rules in your jurisdiction. It’s also important to note that dissatisfaction with the inheritance received is not a valid ground for contesting a will. Courts typically require contesters to argue that the will is invalid due to reasons such as:
- The person lacked mental capacity when they made the will.
- The will wasn’t properly signed or witnessed.
- The person was unduly influenced or deceived.
How to Prevent Someone from Contesting Your Will
While it is not possible to guarantee that your will won’t be contested, there are steps you can take to make it more difficult for a challenge to succeed.
- Include a no-contest clause: Also known as an “in terrorem” or forfeiture clause, this provision stipulates that a beneficiary who contests the will forfeits some or all of their inheritance.
- Provide explanations for your decisions: Leaving a note explaining your reasons for certain distributions can clarify your intentions and potentially prevent misunderstandings.
- Avoid inflammatory language: Harsh or spiteful wording could embolden discontented heirs and even lead to defamation lawsuits if the will becomes public record.
- Ensure your will is properly witnessed: A will execution ceremony with witnesses can help demonstrate your mental capacity and intent.
- Have a backup will: If your will is invalidated due to undue influence or coercion, a previously executed will could be used instead.
- Handwrite the will: A will written in your own handwriting can serve as proof of your mental capacity and intent.
- Record the will signing on video: This can provide further evidence of your mental capacity and free will at the time of signing.
- Get a medical examination on the day you sign your will: Testimony from a doctor can help refute future claims of mental incompetence.
Costs Of Contesting A Will
The costs of contesting a will can be substantial, potentially running into the thousands of dollars. These costs may include:
- Legal fees for estate planning attorneys, who typically charge by the hour.
- Court costs, which can vary by jurisdiction.
- The value of your time spent dealing with the process.
Before deciding to contest a will, it’s important to weigh these costs against the potential benefits.
Creating An Uncontestable Estate Plan
While estate planning can be a source of tension, it is a crucial part of life. A solid estate plan can help prevent disputes and confusion after your death. It’s important to ensure that your will is legally valid, clear, and consistent with your intentions.
Online platforms can make estate planning easier by providing access to experienced, knowledgeable estate planning attorneys. They can help you create and periodically update your estate plan to reflect changes in your life and assets.
Contesting a will is a complex and potentially costly process. It’s crucial to understand the legal requirements and potential consequences before embarking on this path. Consulting with an experienced estate planning attorney is often a wise first step. Conversely, making sure your own will is well-crafted and clear can help prevent disputes and ensure your assets are distributed according to your wishes.