Family members challenge wills if they 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.
Who May Challenge a Will?
To challenge a will, you must have standing in the probate court. A person has standing to challenge a will if:
- The person is a beneficiary named specially in the will
- The person would automatically inherit from the estate even if the will was invalid
People in the latter group are usually spouses and/or immediate family relations by blood.
Unless they are specifically named in the will or are legally recognized children of the decedent, the following may not challenge a will:
- Foster children
A person is typically identified as the child of another person either through a birth certificate or adoption papers. There are other legal procedures that 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
- Maker was pressured by someone to agree to those terms
- Maker has another will or trust which trumps this one
- Was not properly witnessed or signed
- Maker was mistaken or induced by fraud to sign
What Can I Gain from Challenging a Will?
After a successful challenge, the entire will or part of it will be voided, or a prior will might be reinstated. If the entire will is voided, and if there was no prior will, the decedent'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. Using other means, such as trusts, to give away assets will help decrease the amount of assets written into wills. The following are a few guidelines that can help avoid potential will contests:
- Do not 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?
Courts will try their best to interpret a will and carry out the decedent’s wishes. Public policy and state law will still govern the document. Wills that violate public policy or state laws may be invalidated.
If someone challenges a will, evidence of the decedent’s intentions becomes extremely important. The court can use the following as evidence:
- The testimony of witnesses to the will’s signing.
- The attorney or solicitor that helped the decedent in drafting the will.
Any letters or written testimonies explaining why someone was left out of a will are also important. 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.
Should I Get an Attorney If I Am Contesting a Will?
Yes. An experienced estate attorney can help if you believe you have been wrongfully deprived of an inheritance. An attorney can also help you if you believe the decedent was incompetent at the time, or unduly influenced by another person.