Like having someone who looks like George Clooney or Scarlett Johansson fall in love with you, contesting a will is not as easy as it is depicted in television shows or movies. In fact, it is a difficult and typically lengthy process, and often fails. However, if you have a good reason to contest a will, you should at least consider your options.
First, you must determine if you would even be allowed to contest the will – not everybody who was involved in the decedent's life has the legal basis to do so. The contesting party must have "standing;" in other words, he or she must be affected personally by the resolution of the lawsuit.
Generally, if you are an heir at law of the decedent, meaning you would have received a portion of the estate had the decedent died intestate (without a will), you have the legal standing to contest a will. State laws vary on this point, but spouses and children are the obvious heirs.
You may also be able to challenge the will if you were included in a previous will but left out of an updated one. This also applies to both individuals and institutions listed as fiduciaries in a previous will.
If you can contest the will, what is your reason for doing so? You have four basic grounds from which to choose:
- Not Properly Signed by State Law – This is the most common means of invalidating wills. State law governs the validity of a will and its execution, and if it can be proven that the signing was done outside of the state's procedures, you have a reasonable case. For example, were there fewer witnesses than your state requires? Check the laws in your state for further details.
- Not Mentally Capable of Signing – To be able to be a testator (create/sign a will), you have to understand what your assets are, who would logically inherit them, and the legal obligations and effects of signing a will. Most states are lenient with respect to a testator's competence.
Without a medical opinion of incompetence prior to (or within several days after) the signing, this is difficult to prove.
- Forced Signing – While this is a popular Hollywood plot device, it is a pretty difficult charge to prove. Nagging is not legal grounds (if it were, wouldn't we all be lawbreakers?), and even threats or abuse is not always enough to prove coercion.
You may need evidence of someone working with the testator's attorney behind their back, holding the will without letting others see the original, limiting access to the testator, or other egregious behavior.
- Fraudulent Signing – If a person is duped into thinking that they are signing a document other than a will, such as a power-of-attorney, then the will can be contested.
Since you cannot get the opinion of the deceased, how do you prove this? You can question those who witnessed the signing. They may have been duped as well or have inconsistent stories.
If you do contest, you can file a suit before probate (known as a caveat) or after the probate process has been initiated. Check your state law for details, as the process varies. Generally, there is a time limit for challenging the will after probate – one to three months is common.
Consider the costs before you proceed. Even if you have a legitimate complaint, will you recover the thousands of dollars that the challenge will likely cost?
Should you decide that you have legitimate standing and grounds, and are willing to proceed with your challenge, find a lawyer with whom you are comfortable to handle your filing – and good luck with your quest. Me, I’m holding out for Scarlett Johansson.
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