Contesting a Will is the formal process of asking a court for a nullity to a person’s will or for the distribution of assets in another manner. A will contest is usually a dispute between the family over inheritance.
Who is allowed to contest a will?
Two types of people can contest a will :
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Persons who are beneficiaries the person’s previous or current will.
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People who would inherit something if someone didn’t leave a will. (was “ intestate “) The state’s laws would have given them something.
Get advice from a qualified lawyer to learn the rules in your area.
There are many situations that could trigger a will contest.
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Disinheriting a spouse or child in favor of a friend or charity.
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Don’t leave your children equal shares of the estate.
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Instantly and profoundly changing your will.
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There are many conditions that must be met before someone can inherit their inheritance.
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Behaving badly that would suggest you were unable to make the will or change the will.
How do you contest a will
A contestant must do several things to contest a will, or an amendment to a testament (called a “codicil”)
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Hire an estate planning attorney. It can be difficult and time-consuming to contest a will. An estate planning attorney may be a good choice.
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Analyze the asset’s characteristics. The decedent might have named a beneficiary in the account administrator if a disputed account is a retirement, pension, insurance policy, or joint account. These accounts may not be distributed through the probate process, so a lawsuit might be necessary to challenge those designations. Trusts are not usually subject to probate.
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You can file a petition at the state probate court.
This is the formal notice that someone wishes to contest another’s will. This is also known as a caveat proceeding.
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Appeal a probate court’s decision. A person can appeal to the probate judge if they disagree with the way the probate courts allocate the assets of a deceased person.
Get advice from a qualified lawyer to learn the rules in your area.
People can’t contest wills if they don’t like what they got from the deceased. People are usually required to argue that the will cannot be valid for reasons such:
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The will was not made by someone who was of sound mind.
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The will was not witnessed or signed.
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A person was in a “weakened mental state”, and someone influenced them.
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A person forced the person to sign wills that were against their wishes.
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A person lied to another person in order to influence their property division.
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The victim was duped into signing another document.
New York City Bar Legal Referral Service. Will Contests. March 6, 2023.
How can you stop someone contesting a will
There are some things that might discourage you from challenging your will. These steps don’t necessarily mean your will will be protected, but they can make it more difficult to overcome a challenge.
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A no-contest provision can be added to the will. This clause is also known as an “in terrorem” (or forfeiture clause) and states that any beneficiary who contests the will may lose some or all their inheritance. These clauses are not recognized by all courts. People may ask the court to interpret the will where it is allowed to do so to avoid appearing to be contesting the will. However, people who influence the will maker could benefit from the no-contest clause.
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Leave a note explaining why you are leaving. For example, you might say that one of your children will receive a greater share due to medical reasons or that your money will be donated to charity by your heirs.
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Use gentle language. Avoid using harsh language in wills. It may also become public record if the will is subject to probate. People who are defamed by the will (known as testamentary libel), may be able sue the estate to defame them, which could result in a payout.
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You should have witnesses. Witnesses at a will execution ceremony can prove that you were in good health when you made your will.
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Always have a backup plan.
The court might request previous versions of your will if someone convinces you that your will is invalid. A contestant may be able to stop the court from obtaining an older, more executed will.
Additional steps might be necessary if you are concerned about someone challenging your will.
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The will can be handwritten. Handwritten documents may prove that you are competent to write the will.
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Record it. This will prove that you are of sound mind and understood what you were signing. The provisions of the will can be discussed or explained by you. It is important that the video be properly made, not altered, and clearly identifies all those present.
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Have a physical done the day before you sign your will. A testimony from a doctor who examined you that day could help to refute claims that you were mentally incapacitated at the time you signed your will.
How much does it cost to contest a will?
Contesting a Will can cost thousands of dollars if you take into account these expenses:
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Estate planning lawyers typically charge an hourly rate.
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Court costs that vary from one jurisdiction to another.
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Your time is valuable in completing the task.
Compare the cost of contesting a will with the value of the outcome to determine if it is worth the effort.