Will Contest Lawyers
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What is a Will Contest?
A will contest is a legal proceeding challenging the validity of a will or its terms.
Challenges to wills are typically brought on by family members who feel cheated out of their inheritance. A legal battle may erupt if they feel that they have something of worth to gain from the will. The wealthy, in particular, are prone to these legal disputes due to the amount of assets involved.
The process of verifying a will is known as probate and courts which hear legal issues regarding wills and trusts are known as probate courts.
Who May Challenge a Will?
In order to challenge a will, you must have standing in the probate court. A person has standing to challenge a will if the person is either a beneficiary named specially in the will or if the person would automatically inherit from the estate if the will was found invalid. People in the latter group are spouses and/or immediate family relations by blood.
Stepchildren, foster children and in-laws are usually not included unless they are specially named in the will and/or the legally recognized children of the deceased. A person is typically identified as the child of another person either through the birth certificate or through adoption papers. There are other legal procedures which can create an official parent/child relationship, but those procedures will vary from state to state.
How Does One Contest a Will?
Before a will can be contested, a legal basis must be shown for this challenge. This can be shown by one of many different ways including:
- The will maker was not mentally competent at the time he drafted or signed the will
- The will maker was pressured by someone to agree to those terms
- The will maker has another will or trust which trumps this one
- The will was not properly witnessed or signed
- The will maker was mistaken or induced by fraud to sign
What Can I Gain from Challenging a Will?
Upon a successful challenge, the entire will or part of it will be voided, or a prior will shall be reinstated. If the entire will is voided, and if there was no prior will, the deceased's assets are distributed as if there were no will. See intestacy.
How Can I Avoid a Will Contest?
Many will contests can be avoided through good drafting and planning by the will maker and his lawyer. Individuals who have accumulated significant assets can avoid will contests by not using such divisive measures such as disinheriting family members or making grand statements, which can cause conflicts and invite challenges. Using other means, such as trusts, to pass assets will help to decrease the amount of assets written into wills. The following are a few guidelines which can help avoid potential will contests:
- Try to avoid making divisive statements or disinheriting family members, which can lead to animosity and will contests
- At the same time, don’t keep the will a complete secret (with the exception of your witnesses). Your friends and family should be aware that the will exists, insuring that when the will becomes necessary, they won’t contest it out of sheer panic.
- Include a "no contest" clause in your will to prohibit a recipient from challenging the will's validity - usually a no contest clause gives a certain amount of money or a gift to someone, and by accepting that gift they agree not to contest the will
- Create trust funds to transfer assets to recipients at your death and avoid having to use your will to pass sizable assets
What Other Factors May Determine a Will Challenge?
Although courts try to interpret a will according to they believe the deceased’s wishes were, public policy and state law still governs the document. If the will violates a public policy or state law, then that provision of the will may be invalided. For example, some states mandate that the surviving spouse or the guardian of the minor children retain control over a house in order to ensure that the children have a place to live.
If someone challenges a will, evidence of the deceased’s intentions become extremely important. Obviously the testimony of the witnesses to the will’s signing will be important, but other evidence may also assist the court in making its decision. The attorney or solicitor who assisted the deceased in writing the will shall be important in determining what the deceased intended.
Any letters or written testimonies explaining why someone was left out of a will shall also be a priority, although written communication should be used carefully. If the reason for excluding someone from a will is conditional, then an attorney may be able to argue that the condition was never met.
Do I Need to Consult an Attorney Regarding Will Contests?
If you believe you have been wrongfully deprived of all or a portion of your rightful inheritance, you must act immediately to protect your rights. If you believe the drafter of the will may have been incompetent, or unduly influenced by another person, you should also contact an attorney. An experienced lawyer can inform you of your rights as well as preserve any possible legal remedies you may have. If you wish to avoid possible future will contests a lawyer can help you plan and draft a will to suit your needs.
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Last Modified: 10-16-2012 03:44 PM PDT
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