Death is not usually a subject most people willingly want to discuss. However, death is inevitable. When someone dies, they can’t take their worldly assets with them.
Typically, individuals would prefer to make a plan for the disposition of their assets after they die. When someone does make an estate plan, they usually have strong feelings about who they want to inherit the estate or conversely who they explicitly want to disinherit.
The best way to ensure your wishes are respected after you die is to have an iron-clad, valid, legal last will and testament. But, sometimes a family member, friend, or other party chooses to challenge a will.
What Is a Will?
Whether they realize it or not, most everybody has an estate. All assets comprise an estate. These assets can include cash, savings accounts, retirement accounts, personal property like furniture and other possessions, jewelry, stocks and bonds, vehicles owned, homes owned, and more.
When someone dies, all of those assets have to go somewhere. Making a plan to determine what happens to your estate is called an estate plan. The person who makes the plan is called a testator.
Usually an estate plan consists of a document called a last will and testament. Sometimes an estate plan also includes plans for a trust, an arrangement where assets are held by a third person for the benefit of others.
An estate plan should include detailed instructions as to whom each asset should be given when someone passes away. The people who inherit these assets are called beneficiaries.
An estate plan should also provide information on how those beneficiaries will inherit. For example, if a testator has three children and wants all three children to inherit the family home, will the children inherit in equal shares? Or, does one child get a majority share? Having a solid plan will help avoid any disputes among beneficiaries or other interested parties.
Furthermore, there may be situations in which a beneficiary dies before the testator has an opportunity to update the estate plan. If that’s the case, an estate plan should have contingency instructions in place detailing who should inherit that beneficiary’s gift instead.
WHY WOULD YOU CONTEST A WILL?
When a celebrity dies and family members contest the will, speculation runs rampant that the family members are simply trying to squeeze more money out of their deceased relative. That may sadly be the case for some. But, it is not always the case. There are many valid reasons to contest a will.
Oftentimes, a testator drafts a will and then doesn’t update that will for a long time or ever. But, life happens and circumstances change. If a will is not updated properly, then someone may not be in the will who should be.
For example, a testator may draft a valid will when they only have two children, but before the testator dies, they find out they have a third child not born of their marriage. That child may be entitled to a share of the estate. However, in some jurisdictions, that child would have to petition the court or contest the will in order to take a share of the estate.
Another example may be where a testator promises something to someone in exchange for a part of the estate. Imagine a testator is diagnosed with a terminal illness and requests a nephew take care of the testator for the remainder of their life in exchange for inheriting the testator’s estate. The nephew fulfills their part of the bargain, but the testator fails to properly update their will. The nephew may be able to (in some jurisdictions) contest the will based on this agreement with the testator.
A third situation where a relative may feel contesting the will is necessary is if they believe that their relative was taken advantage of. Perhaps the testator was coerced into signing a will bequeathing the estate to someone the testator otherwise would not have given the estate to. In this case, the relative may want to fight for what they believe the testator’s true wishes would have been.
What Are the Steps to Contest a Will?
Once someone decides that they want to contest a will, there are two main ways that a will can be contested.
First, that person must have standing, the legal right to contest the will. Generally only interested parties may contest a well. Those parties include:
Beneficiaries (people specifically designated in the will), beneficiaries named in the testator’s previous will (that may or may not have been properly revoked), persons who were not specifically named in the will but would take due to the state’s intestacy laws (laws that determine what happens to an estate if there is no valid will).
Once standing is established, then a party may try to contest the will. The two main ways to do so are by arguing that the testator lacked the necessary capacity to sign the will at the time it was signed.
The second way is to show that the will is otherwise invalid. In some states, two valid signatures are required for a will to be valid. If those signatures are not present, then the will is invalid, and the estate may have to pass as if there was no will.
Requirements to have a valid will vary from state to state.
Do I Need a Lawyer to Contest a Will?
If you are considering contesting a will, having an experienced estate attorney will help you determine your legal rights and the best way to go about contesting the will. Reach out to an estate attorney today to learn more about your case.