We’ve all seen the commercials where the family is gathered around an attorney’s desk listening to the reading of a loved one’s last will and testament, only to find out they gave everything away to some frivolous person or cause. We all know that the next step is everyone in the room wants to contest a will, but have you ever wondered exactly how that works and what the potential outcome might be?
Basics of contesting a will
Contesting or challenging a will is a legal step taken to request that the court take a closer look at a will of a deceased person, to ensure it is legally binding. It can be a costly process in some cases and it can take time. However, if there are errors in a will, or the document is not legally binding in another way, this process allows the court to order the will not valid, thus allowing the process to go through the probate court.
Protecting your last wishes
If you are in the process of planning or creating a will, it is a good idea to ensure your will is iron clad, legally, to avoid such occurrences. If you are facing a will that you do not believe should be allowed to be upheld, working with an experienced estate planning attorney can help you to get it voided. The person who believes that a will is invalid for some reason will need to file a petition that outlines the reason for this.
Some of the reasons why the court will agree to the contesting include the following.
- The person who writes the will (called the testator) does not have the mental capacity or the competency to make decisions for him or herself.
- The will does not meet all requirements set forth by state law, including all statutory requirements.
- The will is not signed by the testator.
- The testator is under undue influence when writing the will, (being pressured into creating the will in a specific way.)
For anyone to contest the will, that person must show how one of these situations has occurred. This can be very difficult to do and in some cases, it is not possible. If the objections to the will are agreed to be heard, the court will open the will, examine the specifics of the charges and will make a decision about how to proceed. Even when the contestant (the person who is questioning the authenticity of the will) gets the court to open the will for examination, it is not always possible for the reason to be proven.
It is a good idea to consider the ramifications of contesting a will before you do so. It is time consuming and costly. If you decide to go forward with this process, it is best to work with a trusted attorney that specializes in estate planning and will contesting. This gives you the best opportunity to avoid the risk of not winning the case.