When a loved one passes away and the will is read but doesn’t include you, it can feel like a gut punch. Especially if you are a child or grandchild of the deceased, you may wonder why they chose to leave you out. At this point, you can choose to engage in a legal battle to determine the validity of a will. Contesting a will is a way to dispute what the will says.
If you are planning to contest a will, know that you are opening up Pandora’s box. In general, will contests are thought of as “time-consuming, expensive, expose the testator’s eccentricities, and tear families apart.” Many in your family or community may believe that you are gaining “leverage to file “strike suits”: baseless allegations that are designed to obtain a shakedown settlement.” (1)
Contesting a will is an expensive and time-consuming task. In addition, many may believe that you are ill-intentioned in your battle to overturn a will.
Probating a Will
Our courts and society tend to honor someone’s last wishes in the form of a last will and testament. If the judge probates a will, this means that they vetted the will through a court process. The judge may have discussed the will with the witnesses who signed and also researched the notary stamp for authenticity. When you file a suit to contest a will, you suggest that the judge probate a false document.
Filing to overturn a will is called a caveat proceeding. You can file this type of dispute against a will if you learn of factual reasons that you believe void the will.
There are several reasons you might believe a will is void, but there are three likely reasons that include:
- Lack of capacity
- Undue influence
Lack of Capacity
If you believe someone lacks capacity, you are making a statement that they did not understand what they were doing when they wrote or signed the will. According to the National Law Review, these causes cannot be general, such as “having signs of dementia” or “poor physical or mental health.” Reasons must include more specific signs of lack of capacity such as:
- Not knowing who their heirs would be without a will
- Lack of understanding of the nature and extent of owned property
- Not understanding the nature of signing a will
- Lack of realization of the effect signing a will would have upon the estate (2)
In other words, you need specific proof that the deceased did not fully understand what they were doing in writing or signing a will. The deceased specifically and clearly showed a lack of understanding of the nature of a will, property, or heirs.
If you wish to prove that the deceased was under undue influence when they signed their will, you will also need specific and clear proof of your claims. You must show that the deceased was under the coercion or influence of another person while signing.
According to the National Law Review, the factors that courts consider include:
- Old age and physical and mental weakness
- Deceased living in the home of the person accused of undue influence
- Constant association and supervision of the deceased by the accused
- Whether the will overturns a prior will
- If the deceased made the will in favor of blood unrelated persons
- When the will disinherits the deceased’s family members
- If the accused is the one responsible for getting the will signed
If someone not known to the family or brand new to the deceased fraudulently changes a will, there is generally an outcry by the family. The judge will generally not probate the will in the first place. This situation is rare because the deceased’s family doesn’t usually stand by and allow this without a fight.
If you or someone you love needs counsel about contesting a will or fighting a contest to a will, contact us at Vail Gardner Law. We specialize in estate planning and probate issues. Our goal is to meet your legal needs no matter what the struggle. We understand that the laws surrounding estate planning and probate are often close to your heart and need special care and concern on our part. Don’t hurt in silence. Contact us for a free initial consultation today.