Contesting a will is not easy, nor is it something one should consider lightly. As a document, a last will and testament constitutes a person’s final set of instructions on how their belongings should be distributed in death. You will need a solid legal basis to contest such a document, especially if it can be reasonably assumed that the will is legitimate. Most contested will lawyers always make sure clients understand two things before they go down this particular road:
- It is often prohibitively expensive. Very rarely is contesting a will worth what the situation is likely to pay out, especially if the contested item is a single property or checking account.
- It is painful. While losing a loved one always carries significant grief, litigation is often a surefire way to alienate someone else and effectively take the step to cut them out of your life. You may have lost a parent, a grandparent, an uncle, or an aunt, but contesting the will may mean cutting out a sibling or family member and ensuring a lifelong grudge.
That being said, there are circumstances under which contesting a will is both understandable and perhaps even morally imperative, provided you have the proof needed to back up your case.
How is a Will Contested?
A last will and testament is a notarized and witnessed document describing a person’s wishes regarding the totality of their remaining worldly possessions, with a few exceptions. People can have as many wills as they wish, but only the last will remains valid when they die. This legal mandate must be strictly followed once a probate court legitimizes it.
But that does not mean that you do not have a potential case, provided:
- You have legal grounds to challenge the will and;
- You are eligible to challenge the will.
A will is challenged through probate court, usually with the help of contested will lawyers or probate attorneys. While you can look up the process and file the prerequisite paperwork, it is not recommended.
In addition to protocol and clerical formalities, contested will lawyers will always play a crucial role in helping advise important decisions in these cases – one wrong move can ruin you financially or open you up to a dangerous and costly counter-lawsuit.
Furthermore, while nearly any beneficiary can find cause and reason to challenge a will – perhaps they feel it unfairly excluded them or someone else, or perhaps they feel that the will does not reflect their decedent loved one’s true wishes – very, very few contentions are successful.
To summarize: wills are contested through probate. Contesting a will is expensive and usually requires eligibility (you must be deemed an interested party) and legal grounds. Most contentions do not lead anywhere productive and can destroy family ties or open up the possibility of a counter-lawsuit. That said, there are times when it may be a good course of action. Always consult a professional first.
Who Might Hire Contested Will Lawyers?
Eligibility for contesting a will requires you to be a so-called “interested party.” In essence, this boils down to the following:
- Someone named in the will as a recipient or beneficiary.
- Someone named as a beneficiary in at least one previous version of the will but was since written out of the will.
- Someone who is not written into a will but is still eligible as a would-be heir under intestacy laws, should the will be invalid.
Why Should a Will Be Contested?
Having a solid legal standing is essential. It is not enough to argue that you were your uncle’s favorite nephew and deserve his sports car – most of the time, contentions boil down to whether any of the following apply:
Mental competence – being of sound mind – is an important prerequisite for a will’s validity. The creator of the will were mentally incompetent when they wrote or signed the latest version of their will. esseialIf it can be proven that the will was created when the testator was no longer competent, it may be invalid.
These are very serious allegations. The will’s creator was being forced or manipulated to sign the will. This is also called undue influence. In other words, if there is blackmail involved or any threat of violence or malicious behavior, the will can be rendered invalid as a result. Again, the proof is essential.
The will was simply not properly validated. There are specific rules and laws in place to validate a will. A will must be witnessed by individuals who are not directly involved with the will (i.e., not the beneficiaries or the testator themselves), and it must be notarized. A will must also be complete to be valid – a will that doesn’t name any beneficiaries or is missing a signature wouldn’t be valid. Any modifications to the will via codicil must also be adequately witnessed and notarized. Other, more obviously broken laws include forgeries and fraud.
The will is not the last. If you can find a more recent copy of the decedent’s will, which is valid, then that will would be the true last will and testament, rendering all previous copies irrelevant.
What Are Contested Will Lawyers’ Chances of Success?
They are slim at best, but they do depend on your circumstances.
For example: if you are written out of a will that you know is fraudulent and have the proof needed to show that someone manipulated your parent or grandparent into signing a fake will, you may have a very strong case.
But such cases of fraud are rare. If your reason for contention is not as strong, your chances of success are much lower.
It Isn’t Worth It Most of the Time
Contesting a will may be worth it if you can prove that the will was falsely notarized, faked, or created with undue influence, among a few potential legal reasons. But if your primary concern with the will is that it feels spiteful or unjust, you will have a more challenging time arguing a change. Is it impossible? No. But is it worth it? That is a question for contested will lawyers.
