Many people get ready for the inevitable by making a will. Among other things, a will tells who you want to receive your property when you die. Most wills are valid and enforced by courts in a proceeding called “probate.” This word, which means “proof,” refers to a court procedure to prove the will is the true will of the person who died.
Grounds For Contesting A Will
Sometimes people want to challenge a will that someone else tries to prove is valid. This challenge is a “will contest.” A challenger cannot complain just because he or she dislikes what a will says or did not receive enough money or property from the will. The challenger must show any of the following:
• The maker was not of "sound mind" when the will was made. To make a valid will, a person must be mentally competent. This generally means the person understood the nature and extent of his or her assets and family relationships, and understood what he or she was doing by making a will.
• Undue influence was used to get the person to make the will. This occurs when a person is coerced, threatened or forced to sign the will under duress. An example would be if a caregiver or adult child threatened to stop taking care of the person unless he or she was included in the will.
• Fraud was involved in making the will. For example, if a person makes a will and someone later switches or adds pages, this constitutes fraud. Fraud can also occur if someone is tricked into signing a will, even though he or she signed it voluntarily (this contrasts with undue influence, where a person is not voluntarily signing a will, but is only signing under pressure).
• The will was forged or not made in accordance with the law. There are legal rules for making and signing wills, including rules about the number of witnesses. If these rules are not followed, or for some other reason the will is invalid, the will can be contested.
Another kind of contest can occur if, during the probate for one will, a later will is found and presented to the court. Since you can revoke or change your will at any time, a later will has priority over an earlier will.
Only someone with a legitimate interest is allowed to challenge a will, and the most usual interest is that the challenger will gain financially if the will is set aside. So challengers are usually relatives who were disinherited, or someone who received more money or property in an earlier will. This is entirely proper if there is a valid reason to challenge the will. Successful challenges help make sure that the wishes of the person who died are respected.
Because both the challenger and defender have a financial interest, it is sometimes difficult for a court to decide who is right. Even the people who defend the will may be viewed as having a conflict of interest or personal motives for facts they present. A challenger and defender both face a similar issue. That is, in every will contest, the one who knows best what he or she intended is not alive to testify.
Despite these difficulties, many will challenges succeed when there was truly a defect in the will. In a successful will contest, the court can find the will to be invalid and thus reject it entirely or reject only part of it. This can result in property being passed as if the person died without a will or according to the person's prior will. In a close case, the parties also have the ability to agree to a compromise or settlement.
In other cases, no one challenges the will but beneficiaries object to how the estate is being administered. Typical examples of this problem are when the executor or administrator uses estate property for himself or sells it to himself (often for a bargain price), is neglectful in reporting information to beneficiaries, or the financial records are incomplete or even missing altogether. Other common problems are executors or administrators who do not follow the will’s instructions or who take too long to finish administering the estate, creating unnecessary delay and costs in distributing its property. In situations like these, beneficiaries may make a claim against the executor or administrator for not managing the estate properly.
There are strict time limits to bring a challenge to a will. Typically, this is within a few months after the will is presented in a probate proceeding. Therefore, anyone who believes an invalid will is being presented for a court to enforce should move quickly to analyze and if necessary assert their rights.
Contact an attorney at Triscaro & Associates today. Please call us for all your legal needs. We offer a full range of legal services to individuals, families and businesses, including personal injury, estate planning, real estate, family law and business matters. We are dedicated to providing the highest quality legal services at a reasonable cost.