When a loved one passes away and you finally hear their last will and testament, you may get angry. You may learn that you do not receive specific items you feel you are entitled to. You may not receive as much money as you assumed you would because it was gifted to someone else. Your initial reaction may be to contest the will, arguing it is unfair or not as it should be.
However, a judge is not interested in whether a will is fair to you or other surviving family members. A judge is only interested in whether the will was correctly formed. If your loved one’s will is valid, then there is no reason to overturn it. You must have proof that the will was not valid in some way to have the court bypass their decision.
Who may contest a will
Not everyone is entitled to contest a will. You must have standing, which means you have or will be harmed without legal redress. If you are named as a beneficiary in the current will offered to the probate court, then you may contest the will. You also may be eligible under other circumstances.
“Generally, a will can be contested by anyone who would have the right to inherit in an intestate administration of the person’s estate, as well as anyone who was named as a beneficiary in a prior will that has been excluded from the current will offered for probate,” says Anthony J. Enea of Enea, Scanlan & Sirignano, LLP.
In other words, if your relative had passed away without a will, and your state’s law would have allowed you to inherit from the estate, then you may contest a will entered into probate. This typically includes spouses and children. Additionally, if you were named in a previous will, but the decedent changed their will or wrote a new one at a later time, then you may have standing to contest the will.
Reasons to contest a will
- There are only a certain number of reasons for why you can contest a will, including:
- The will was not executed in compliance with state laws.
- Your loved one lacked capacity to create or revise a will.
- Another person subjected your loved one to undue influence in order to affect a new or revised will.
- Your loved one signed or revised their will as a result of fraud.
- Your loved one’s will was forged.
You may be most likely to succeed in proving a will is invalid if your loved one “was suffering from dementia or other illnesses affecting their memory and ability to reason and make decisions,” according to Enea. You also may have a strong case if the decedent was “in both a weak mental and physical state and were so dependent on others for their care that they could be easily influenced.”
How to contest a will
Contesting a will is a legal process that can take a considerable amount of time and money. Once the will is admitted into the probate court, family members and beneficiaries are notified. At this time, if you believe there are one or more reasons why the will is invalid, you need to call a lawyer.
You must determine if you have legal standing to get involved. You cannot contest a will if you would not be personally impacted by the result of your case. You then have to file a motion to contest the will in the court where the will is offered for probate within the appropriate amount of time. Your state law dictates how long you have to argue against the will’s validity.
When you contest a will, you must present evidence of a legally recognized argument as to why it is not valid. Your attorney will guide you in obtaining evidence, which may include documentation and records, your own testimony, other family member and friends’ testimony, medical records, and medical professionals’ expert opinions. Your lawyer will also ensure this evidence is presented to the court persuasively.
Is a relative’s will invalid?
If you believe your loved one’s will was not valid when it was formed, call a lawyer to discuss your options. It can be very difficult to prove one of the reasons above. However, if there is evidence of any of those situations, you and your family may benefit from arguing your case.