How to Contest a Will
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What Is the First Step You Should Take?
When a loved one dies, there will be a lot with which you will need to deal, including the distribution of their possessions. Chances are that they will have left behind a will, but it may be invalid. If you think that the will does not accurately reflect how your loved one’s property should be distributed, then you may need to contest the will.
The first thing that you will need to do when you suspect that something is not quite right with your loved one’s will is to figure out why there is something wrong with the will, as this will provide you with grounds on which to challenge the validity and enforceability of the will.
Why Would I Want to Contest a Will?
There are four basic situations in which you would want to challenge a will because if any of these for situations apply, then the will is not valid and it cannot be used to determine the division of the deceased’s property. The first situation is when the testator, who is the person that made the will, was not mentally capable of fully understanding just what they were saying in the will, such as if they were suffering from dementia at the time that they created the will and left some of their property to a relative who was already deceased at the time because they forgot the person was dead.
The second situation is when the will was not properly created in a manner that adheres to state law. For instance, what one person may claim to be the will is actually not valid as a will because it does not contain the testator’s signature or it was not dated.
The third situation is where the testator was unduly influenced when making the will, which may be the case where a family member strongly pressures the testator to make a dramatic change in their will so that the family member inherits everything.
Finally, the fourth situation in which the will may be invalid is if the testator was tricked into creating the will, such as if they were told that the document that they were signing was a contract instead of a will. In all of these instances, you may want to contest the will and have it declared invalid because the distribution of your loved one’s property may be very different if the will is invalid and, thus, not enforceable.
Certain states also allow for one to challenge the will if they believe that they were unintentionally left out of a will. For instance, most states will allow you to contest a will if you are the deceased’s spouse and their will was created before you married them. Some states, such as California and Texas, also allow for children who were born after will was created to contest the will. In challenging the will because you were omitted, you may be able to get what you would have otherwise inherited if there was no will.
How Can I Successfully Contest a Will?
In order to successfully contest a will, you will need to be able to prove that either the will is invalid for one of the four aforementioned reasons or that you were a spouse or child who should have been included in a will, but were not included because the will was created before you came into your loved one’s life. You can do this by filing a lawsuit to challenge the will after the person has died. Different states have different deadlines by with the challenge must be made, but it generally must be done soon after the death.
You must also demonstrate that you have standing to challenge the will. This means that you have to prove that you, as a potential beneficiary, will be personally affected with the outcome of the challenge, whether that means that you stand a chance at receiving a bigger share of the property if the will is declared invalid or you are poised to inherit something despite not being included in the will.
Finally, you will need solid evidence proving that you were either unintentionally omitted or that the will is invalid and should be ignored. After all, when you are challenging a will, you are effectively saying that the will is not an accurate reflection of how the deceased would have wanted their property distributed after they died.
Do I Need a Lawyer to Contest a Will?
It is an incredibly difficult time when a loved one dies. The situation will only become worse if you feel their true wishes with regard to their property are not being carried out because of an incorrect will. An estate lawyer can advise you as to the process of challenging a will and represent you in matters related to your challenge.
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Last Modified: 06-05-2017 11:13 AM PDT
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