There are very few circumstances where the idea of contesting a will elicits positive emotions. The image that is associated is usually one of strife, stress, and hurt. Not only is the focus being taken away from honoring the passing of a loved one, those who remain are often in the process of learning new, often unpleasant, things about one another.
Regardless of the negative aspects of the experience, there are times when an individual has no choice but to take on this battle. It might be borne from noble causes, such as a sense of justice, or out of a desire to see that our deceased loved one’s actual wishes are materialized. It might simply be a practical matter of seeing to our own financial well-being. Whichever the motive, certain rules apply to the process.
Not everyone has the right to challenge – or contest – a will. In order to determine standing – or the potential rights to compensation – the person must be able to show that he or she is either named in the current will; was named in a previous will; is a qualified representative for an interested person; or is someone who would have received assets if no will had been crafted. States have specific laws which define these parameters for contenders. In California, such interested persons also include creditors.
Any who are named in the current will are the beneficiaries, and have the automatic right to standing. These beneficiaries do not need to be relatives of the deceased. Others who have the right of standing are those who are considered heirs, or relatives who would have received assets if the deceased had not produced a will. Minor children are able to contest the will, but usually not until they have reached the legal age of adulthood.
When a person with a will dies, most wills must be entered into probate. The process of probate is what deems the contents of the will valid, so a person contesting must be mindful that someone has entered such a petition with the courts. If possible, it is best to file a lawsuit against the finalization of the will before probate has completed. This will result in obtaining a hearing, during which time the courts will permit you time to draft a written objection. This objection must outline the legal grounds under which the will is being contested. In all cases within California, the contesting person is the one who bears the burden of proof, and has to prove that he or she has a valid claim.
If you miss this window of time, there is still a chance for contesting. California laws allow for an objection to be filed within 120 days of the opening of probate. Other states can offer up to two years of time for contesting a will that has entered probate. In the case that probate is not ever opened for the will, the timeline to contest it is indefinite.
You’ve made it this far, and now it is time to gather your evidence for grounds to file. In order to be successful in the challenging of a will, certain conditions need to be established as fact. Such conditions are those which provide for the possibility that the will was not crafted in a way that the deceased truly intended, if he or she had taken all things into rational – and careful – consideration. Two of the more common areas of dispute are the legality of the actual document, and the mindset of the deceased when the document was created.
While most state laws do permit for wills to be crafted by individual – even by hand, and with only pen and paper – there are still guidelines to ensure that it can be considered valid. In the case that there are disputes, wills which do not contain both the signature of the deceased and the signatures of witnesses – sometimes including the stamp of a legal notary – can be considered invalid. Those who are named in the will as beneficiaries are not permitted to be the witnesses for the will.
There is also verbiage which is considered acceptable within the document, and failing to include such can create grounds for challenge. Such wording includes the fact that it is a will, along with the fact that it is being created under no impairment or duress. There should also be an executor named, as well as the names of beneficiaries.
A second area for grounds is that of evaluating the mental and emotional capacity of the deceased at the time that the will was created. This concept is often referred to as “sound mind.” Being of sound mind implies that the deceased understood what the document was intended for; understood who the will was meant to provide for; understood the value of his or her own debts and assets; and possessed the ability to distribute the assets properly. This category also includes the aspect of the deceased not being manipulated, coerced, or forced into signing off on the document.
In some cases, it may be known to the contesting party that the will in question had been overwritten by the existence of a subsequent will. In most states, it will be required to show that the testator of the will intended the replacement. This is more easily accomplished if the wills include the dates of drafting, and contains wording which indicates that it is intended to replace any former wills.
As the process of contesting a will can become highly difficult and emotionally charged, it is advised to consult an experienced attorney for advice and support. Some attorneys will work on a contingency basis, meaning that they will receive payment in the form of a percentage of your eventual compensation. An attorney can help you to weather the storm of litigation; can advise you as to timeliness and tactic; and can help you to reach a settlement as soon as possible.
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