Understanding the Process for Challenging a Will and The Potential Consequences of Doing So
While it is difficult to accept the passing of a loved one, it is important to understand that making the right decision in line with their last will and testament is just as vital.
You will have to make some tough decisions and executing your loved one’s will is one of them. The process of challenging a will can be overwhelming, emotionally daunting, and at times, expensive.
It requires that the person understand their rights and the technicalities and nuances of the endeavor, which is why they need to consult an expert and reputed attorney.
Understanding The Difference Between Challenging a Will and Contesting It
Before you proceed to challenge a will, it is vital to consider that there is a significant difference between challenging it and contesting the will. You see, contesting a will is all about using your rights as a beneficiary if the decedent has not mentioned you in the will.
For example, a deceased father, in his will, has left out his son and has treated him unfairly in the will. So, in such cases, you can contest the will, implementing what is known as a family provision claim.
On the other hand, challenging a will is completely different and has to do with the petitioner having the court throw out the will on the grounds of it being fraudulent, dubious, illegitimate, etc.
For example, a father who was not of sound mind was forced and manipulated into creating a will in favor of the caretaker or another close family member with power of influence.
In this case, if you can bring forth solid evidence for your claim, you have the courts nullify the will entirely.
Know What Your Rights Are When Challenging a Will
Before you formulate a plan to challenge a will, you need to do so in a calm manner. Heading in brashly will only cause more complications.
You need to be clear, compile the evidence to support your claim and hire an experienced attorney to create a plan of action. Your attorney is going to be more than well-suited to first explain your rights and the challenging process.
Whether you are contesting or challenging a will need to offer the court evidence of the validity of the will. For example, if you can prove that the will was illegitimately or fraudulently conceived or if the decedent was not in their right mind when creating the will, you will have more chances of success in your quest.
Moreover, you will also need to be prepared for the ensuing battle against other beneficiaries and caretakers advocating the will.
Know that challenging a will can be a long court battle comprising multiple hearings, court appearances, filing and petitioning, mediating, etc. You have to be ready and able to handle all these elements to win the case.
Factors That Constitute Challenging a Will
Depending on what jurisdiction you live in and the inheritance laws governing your state, there can be multiple reasons to challenge a will. Let’s look at some of them.
The Decedent Had a Declining Mental Capacity
This is when the creator of the will was not of sound mind when creating a will or was forced to create a biased will in that condition by someone who had a significant influence on them. Dwindling mental capacity could be a result of the decedent suffering from mental illnesses such as dementia, Alzheimer’s, or significant drug and/or alcohol influence.
The Will Does Not Have the Required Legal Formalities
A common denominator in creating wills throughout all US states is that they need to have certain legal requirements to be authentic. For example, if the will does not reflect the required number of witnesses or lacks the necessary signatures, you can challenge the validity of the will.
The Decedent Was Under Undue Influence When Making the Will
If the decedent was under the heavy influence of someone close to them when creating a will, the chances are the document is going to be very biased and swing in the favor of that person(s). Similarly, if the will was created by pressurizing the decedent by exploiting their vulnerabilities, you can challenge the will.
The Will Was Forged or Created Fraudulently
This is where the will was created fraudulently or was forged where the suspected individuals copied or forged the signatures of the decedent after adding details that are more favorable to them. If you can demonstrate or prove that the will was tampered with in any way, you can challenge it and have it thrown out.
Powerful Reasons Why You Should Challenge a Dubious Will
Ensuring That the Wishes of the Decedent Are Met
One of the reasons you should challenge a will is to make sure that the will is executed in line with the decedent’s decisions. This can involve getting justice for beneficiaries illegitimately struck from the will.
Ensuring The Inheritance to the Rightful Beneficiaries
This can involve you and any other beneficiaries. Challenging a will that was created by pressurizing the decedent or fraudulently made is going to help take the inheritance out of the hands of the people who are not entitled to it and into the hands of the people who are the real beneficiaries.
Enhancing the Total Value of the Inheritance
In some cases, if you are successful in challenging a will, you can agree to a settlement offer thereby increasing the amount of assets or money you receive from the will.
The Potential Consequences of Challenging a Will
It Can Be Expensive
You have to understand that challenging a will can be expensive. The probate process is already quite costly. The challenging and petitioning process will incur additional expenses.
The No-Contest Clause
Be aware that if the will has a no-contest clause attached to it, it will mean that if you are unsuccessful at challenging the will, you will be legally removed as a beneficiary.
It May Cause Disharmony Amongst Your Family
No matter whether you are right in challenging a will, know that doing so will almost always anger some of your family members who just want the will to be quickly executed. This could potentially cause bitter rivalries and rifts between the family.