Understanding How a Potential Heir Can Challenge a Will and the Litigation That Can Result
Upon the passing of an individual, according to state laws, the decedent’s real estate (which comprises a portfolio of their properties, cash, accounts, etc., if any) is to be distributed as stated in that individual’s last will and testament.
However, it is important to know that the process of asset distribution is done under the purview of the circuit courts. This process is known as probate. During this process, the circuit court carefully evaluates the will and starts the distribution of assets therein according to the guidelines mentioned in the will.
However, at times, contesting the decedent’s will becomes necessary or a possibility. This is when one of the heirs mentioned or (not mentioned) in the will can challenge the validity and authenticity of the will. While this doesn’t happen that frequently, it is certainly a possibility.
Understanding Some Important Reasons That Constitute an Individual Challenging the Will
When it comes to challenging a will, it is quite common for people to think about family disputes and arguments over the decedent’s assets (such as properties, cars, etc.). However, you must understand that family disputes aren’t the only thing that can enable you to contest a will. Let’s have a look at some other important reasons.
The Decedent Was Mentally Distraught When Creating the Will
If you can prove that the owner of the will was not of sound mind or was mentally incapable of producing the will, you can effectively contest the validity of the will. You see, the law dictates that the person creating the will must have knowledge of what is going around them and the impact their decision will have once the will comes into effect.
The Writer of the Will Was Subject to Undue Influence
It is also quite possible that the producer of the will came under emotional or any other undue and illegal influence of someone else while writing the will. For example, they could fold under the pressure of a prominent family member or a caretaker. The law dictates that the person writing the will must not be under any pressure.
The Creator of the Will Was Not Sure Whether They Intended to Write the Will
It is highly preferred that the person creating the will must also attach a statement that they are indeed writing their last will and testament. While this point may come as basic, a will can be contested if the document is proved not to be intended as the decedent’s will.
For instance, a potential heir could make an argument that they will be discovered under a dusty old book was incomplete and that the person who wrote it did not mean to write it as a last will.
The Will Does Not Seem to Be Complete or Does Not Bear Witness and/or Owner Signatures
For the will to be valid legally, it must be signed by the witnesses involved when it was being created (the lawyers, etc.) and the person writing the will. There must be at least two unassociated witnesses that must sign the will as they will be required to testify to the validity of the will when the document is going to be executed by the court.
If there are no signatures of the parties involved or the will is missing the signature of the owner, you can challenge the authenticity of the entire document and have it thrown out by a judge.
Who Legitimately Challenge a Last Will and Testament?
There are only a handful of heirs and associated individuals that can legally contest a will. You must be considered an interested party in the eyes of the court to be able to challenge the document. Considering this, let’s look at what other interested parties can contest a will.
Beneficiaries Mentioned in the Will
The individuals who were named as the will’s beneficiaries in the previous version of the will but for some reason were removed from the latest version of the will can challenge its validity.
Heirs Named in the Will
These are individuals mentioned by name in the will who are set to receive any real estate or assets in line with the state’s intestacy laws. The heirs can include the decedent’s spouse, kids, parents, brothers and sisters, extended family members, etc.
Steps To Take When Challenging a Will
Once the last will and testament of the decedent goes in for the probate process, you will have the opportunity to voice your concerns and contest the will. This is how you can do that:
First, it is highly recommended that you consult an experienced attorney. Sure, it will cost you, but the attorney will bring their experience and knowledge on the nuances of challenging wills and formulate a winning strategy for you.
Next, after securing an attorney, you should proceed to file a claim in the probate court. The probate court. It is advisable to file your claim in the region where the decedent passed away.
After your claim is filed and processed, the circuit court will then ask you to bring solid evidence backing up your claims. The nature of the evidence could be in the form of witness testimony, answering questions via a deposition, etc.
If your evidence is sound and beyond reasonable doubt, the court will then provide you control of the real estate you filed a claim against, securing your inheritance.
Understanding What a No-Contest Clause Is
When challenging a will, it is very important to first ensure that they won’t have a no-contest clause. A no-contest clause is essentially a legal stipulation added by the creator of the will stating that if an heir or beneficiary challenges the will and fails, they will be completely written off as beneficiaries. In other words, they will be disinherited.
Bottom Line
While challenging a will can be a bit complicated and, at times, expensive, know that the chances of success aren’t always high. However, if you do have confounding evidence to support your claims, it is advisable to contest the will as it is your legal right as a beneficiary or an interested party.