Contesting a Will

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You would think that a will is ironclad, but this is not always the case. Wills are contested often and for a number of reasons. Whether you are considering contesting a will, or you are worried about your will being contested upon your death, it pays to understand the process of contesting a will.

What Does Contesting a Will Mean?

Contesting a will is the legal term for challenging a will. Often, family members contest a will when they find the distribution of assets and property unfair or not to their liking.

Although an individual cannot contest a will solely because they think the distribution of the estate is unfair. They can contest it if they feel the will was not properly executed, if the deceased lacked the mental capacity (called “testamentary capacity”) when making the will, or if they feel the will contains a mistake. Other reasons for contesting a will may include fraud or duress (the deceased was forced into signing the will).

What Happens When an Individual Contests a Will?

If an individual is contesting a will, the probate court must decide if the will is valid. The court will examine if the will conforms to the requirements set forth by the state and if the deceased was mentally competent when he or she signed the will.

If the court finds the will to be invalid, all the property and assets left by the deceased will need to pass under “intestacy,” which means the will is null and void. Sometimes, however, only a part of the will – not the entire will – is found to be invalid. For example, if the courts finds that one of the beneficiaries coerced the deceased into leaving him or her property, that beneficiary is excluded from the will and only that property left to that person is considered to fall under intestacy.

Can I Draft my Will to Prevent Someone from Contesting it?

A will may contain a special “no contest” clause. In short, this clause excludes any beneficiary from receiving the property gifted to them if they contest the will.  The clause is often written in such a manner as to discourage a beneficiary from contesting the will. In other words, if someone contests the will, it may mean he or she receives nothing.

State law, however, usually supersedes at this point. Some states still allow a beneficiary to contest a will and still receive their inheritance, provided they have probable cause to contest the will.

Can Someone Contest a Will before the Individual Dies?

No, individuals cannot contest a will before the death of the individual who drafted the will or before the will enters probate. In other words, if you discover the contents of the will are not to your advantage as a beneficiary, but the individual who drafted the will has not yet passed, there is nothing you can do legally.

Can Someone Contest a Will Because They Don’t Think it’s Fair?

No, an individual cannot contest a will based only on the fact that they are unhappy with the distribution of property and assets. In other words, an individual contesting a will must have sound evidence on which to base the claim, such as a mistake, fraud or undue influence.

Can an Individual Contest a Will on Behalf of Another Person?

No, only individuals listed in the will or beneficiaries of an estate can contest a will. For example, a spouse cannot contest a will on behalf of his or her spouse.

How Can I Ensure My Will Is Not Contested?

The best way that you can ensure the legality of your will is to have an experienced probate attorney prepare it. It is best to convey your worries about a specific individual or individuals to the probate lawyer so he or she can use clearly written language that addresses your concerns. If you think your family members will contest your will based on your mental competence, you should have a physician evaluate your mental state at the time you sign your will. To prevent any additional unforeseen trouble after your death, your probate lawyer may also request that you videotape the execution of your will, including the moment you and your witnesses sign the will.

It is important to know the money spent to defend a will is deducted from the estate, so it is wise to do what you can if you suspect someone may contest your will.

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