How Do I Contest A Will?

October 29, 2010

Dealing with the death of a loved one is a difficult situation for everyone. Emotions get the best of people when the thought that their beloved family member is no longer with us. When you question whether your dearly departed’s last will and testimony truly reflects how they wanted their assets distributed, emotions run amok and the difficulty of the situation increases dramatically.

Contesting a will is a complex and expensive process. First, you must have “legal standing” which means you must be able to demonstrate to the court that you have a sufficient enough connection to the departed (in most states that means being a spouse, child, grandchild, parent or sibling) to contest the will.

Second, you must have a valid reason for such action. And being disappointed in your inheritance is typically not enough. The four primary legal grounds for contesting a will are as follows:

• Improper Execution: The laws governing the signing and witnessing of a Last Will & Testament are very specific, but vary from state to state. If you can show that the signing was not in accordance with all applicable state laws, there’s a good chance of the will being declared invalid. In fact, this is the most common and successful reason for contesting a will.

• Lack of “Testamentary” Capacity: When a will is signed, the “testator” (person signing the will) has to fully understand the value of his or her assets, who should logically inherit them, and the legal effect of the action he or she is taking. While certain medical conditions can limit judgment, proving lack of capacity is very difficult, and often requires a court decision that the person was incapable of understanding their actions within days of the will signing.

• Undue Influence: If it can be demonstrated that the deceased was forced into signing by someone who would benefit from the will, it can be contested. Unfortunately, undue influence is also very difficult to prove.

• Fraud: If it can be proven that the deceased was deceived into signing the will –being told they were signing a power of attorney instead, for example – the will can be contested for fraud.

But even if you feel you can prove any of those cases, keep in mind you may still not have much luck. Because many people hate the thought of beneficiaries fighting over willed assets, and include a “no contest” clause in the document to avoid such unpleasantness. The clause states that any beneficiary contesting the will forfeits their inheritance. If the will in question has this clause, the uphill battle you’ll have to fight becomes much steeper.

As you can see, contesting a will is extremely difficult. You should only do so if you’re convinced that your loved one’s wishes aren’t being met, and you can prove it.

To better understand whether or not a departed loved one’s will could or should be contested, you should consult your family attorney. They will remind you of your rights and better assess your situation specifically to advise you if contesting the will is a good idea, or even possible.

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