How to Contest a Will?

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 What Is a Will?

Whether an individual realizes it or not, they most likely have an estate. All of their assets make up what is referred to as their estate.

Assets in an estate may include:

  • Cash;
  • Savings accounts;
  • Retirement accounts; and
  • Personal property, including:
    • Furniture and other possessions;
    • Jewelry;
    • Stocks and bonds;
    • Vehicles they own;
    • Homes they own; and
    • Other items.

When an individual passes away, all their assets must go somewhere. When an individual makes a plan for what will happen to their estate, it is called an estate plan.

The individual who makes that plan is referred to as the testator. Typically, an estate plan will include a last will and testament.

A last will and testament is a legal document that details how an individual wishes their estate to be distributed when they die. In the majority of states, a will is required to contain each of the following to be valid and legally enforceable:

  • The will must be in writing;
  • The will must be signed by the will’s creator, also known as the testator;
  • At least two competent witnesses must witness the will; and
  • The testator must have testamentary capacity.

In some cases, an estate plan also includes plans for a trust. A trust is an arraignment in which assets are held by a third person for the benefit of others.

An individual’s estate plan should include detailed instructions regarding to whom each asset should be given when they pass away. The individuals who inherit this property are referred to as beneficiaries.

Estate plans should contain information on how the beneficiaries will inherit their property. For example, if the testator has three children and wants them all to inherit the family home, they must determine whether all three children get an equal share or if one child gets a majority share.

A clear estate plan will help avoid disputes among beneficiaries or other interested parties. There may also be issues if a beneficiary passes away before the testator can update their estate plan.

The estate plan should have contingency instructions in place that outline who should inherit that property instead.

What Is a Will or Trust Contest?

Contesting a will means that the authority or validity of the will is challenged, in addition to its provisions. In general, an individual contests a will if they believe they are being cheated out of what property the testator intended for them to receive, for example, their rightful inheritance.

The individual contesting the will most likely believe that the distribution is unfair or not according to the decedent’s intentions and wishes. The contesting beneficiary named in the will may choose to file a civil lawsuit to have the provisions of the will changed or canceled entirely.

These types of contests may also occur in relation to a trust. A trust is an estate planning instrument where a third party, called the trustee, holds assets on behalf of one or more beneficiaries.

What Is an Anti-Contest Provision?

An anti-contest provision, also called a no-contest clause or a forfeiture clause, may be placed in a will or a trust that provides that any individual who contests the terms of the document will automatically forfeit anything they were entitled to as a beneficiary.

An anti-contest provision is similar to the provisions included in a basic contract. These provisions are intended to help prevent any occurrence of will contests.

This is because a will contest often leads to a legal battle. These clauses are enforceable under most state laws.

Why Would I Contest a Will?

Some examples (i.e., when celebrities pass away and their family members contest their will) cause speculation to arise that their family members are trying to get even more money out of their deceased relative. Sadly, that may be the case for some individuals.

However, it is not always that way. There are numerous valid reasons an individual may contest a will.

It is common for a testator to draft a will and then not update that will for many years, if ever. However, life happens, and circumstances do change.

If an individual’s will is not properly updated, an individual who should be in the will may not be. For example, a testator may draft a valid will when they have two children but, before their passing, they learn they have a third child not born of their marriage.

That third child may be entitled to a share of their estate. In some jurisdictions, however, that child must petition the court or contest the will to take their share of the estate.

Another example may arise when a testator makes a promise to someone in exchange for a part of their estate. For example, suppose a testator was diagnosed with a terminal illness and requested their nephew to take care of them for the remainder of their life in exchange for inheriting the testator’s estate.

Suppose the nephew fulfills their part of the bargain, but the testator fails to update their will. In some jurisdictions, the nephew may be able to contest the will based on this agreement with the testator.

Individuals may also feel the need to contest a will if they believe their relative was taken advantage of. This may occur if a testator was coerced into signing a will giving their estate to someone the testator otherwise would not have given it to.

In this case, the relative may want to fight for what they believe the testator’s true wishes were.

What Are the Steps to Contest a Will?

Once an individual determines that they need to contest a will, there are two main ways that this can be accomplished. To contest a will, an individual must have standing to contest the will.

In general, only interested parties can contest a will. These parties may include:

  • Beneficiaries, or individuals specifically designated in the will;
  • Beneficiaries who are named in the testator’s previous will, that may or may not have been properly revoked;
  • Individuals not specifically named in the will would take under the will due to the state’s intestacy laws or the laws determining what happens to an estate if no valid will exists.

Once an individual establishes standing, they may try to contest the will. One of the two main ways to accomplish this is by arguing that the testator lacked the capacity to sign the will when it was signed.

The second way to contest the will is to show that it is otherwise invalid. In certain states, two signatures are required for the will to be valid.

If those signatures are absent, a will is invalid, and the estate may have to pass as if there was no will. The requirements to have a valid will vary by state.

Do I Need a Lawyer to Contest a Will?

If you are considering contesting a will, it is important to have an experienced will contest attorney in your area help you determine your legal rights and the best way to contest the will.

Your attorney can advise you of the requirements in your state and whether or not you may be able to argue that the will was invalid.

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