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When Can You Contest a Will?

When Can You Contest a Will?

When someone passes away and leaves behind a Last Will and Testament, this document details how the deceased’s property is to be distributed and who is to be charged with settling their estate.

Sometimes, relatives do not believe the will reflects the deceased’s last wishes or they have different types of objections to the contents of the will. In these cases, they can resort to a will contest, filing a lawsuit to invalidate the will. 

This type of lawsuit involves several stages. The stress of litigation can sometimes add to the pain and suffering of having lost a loved one, therefore, having an experienced will contest attorney is essential to ensure legal success and peace of mind.

Legal Standing

Before considering a will contest, you must first establish whether you have standing to contest the will in question. In order to contest a will, plaintiffs have to fulfill certain requirements. Sometimes a will can be contested by an organization, for example, a charity. Whether the will is being contested by an individual or an entity, the party involved must be an heir, a beneficiary, or a fiduciary that was named in a previous will.

Timely Filing

There is a statute of limitations on will contests across US states. In general, you have two years to file a will challenge in the majority of jurisdictions, but the time limit is only one year -or less- in some states. If the person challenging the will is a minor, the beginning date is the day he turns 18, in most states.

Judges can sometimes waive the statute of limitations if they believe there is sufficient merit to make an exception.

The time starts running after the will is presented to the court for probate, for which executors generally have four years, counting from the time of death.

Grounds to Contest a Will

Besides having legal standing, will challengers must have grounds to contest the validity of the document. 

Some acceptable grounds to contest are will are:

1. Testamentary Capacity

Minors lack testamentary capacity in most cases and across most jurisdictions. Thus, a will written by a minor is often invalid.

Cognitively challenged adults, including those with dementia or severe psychiatric problems, do not have testamentary capacity. The same is true for wills signed under the influence of certain substances.

2. Fraud, Forgery, and Undue Influence

If someone was manipulated into writing a will, the document can also be deemed invalid. The same applies to forged signatures and fraudulent documents.

3. Existence of a More Recent Will

When an outdated will has been presented for probate, you can contest it by introducing the newer will, which trumps the previous one.

4. Availability of Witnesses

In most states, a will must be signed in the presence of two witnesses (who cannot be heirs) in order to be valid. Handwritten, unwitnessed wills are allowed by half of US states, but they can be easily challenged, because it must be proven that they were actually handwritten by the testator.

5. Validity of Will Provisions

States have different requirements for what a valid will must contain. If one of the basic elements is missing, the will can be challenged.

In general, a will must:

  • identify the testator
  • appoint an executor
  • include a clause that leaves at least one piece of property to a specific heir 

6. Testator’s Residence

Since different states have different legislation, sometimes an individual can challenge a will if it was filed in a state that is not that of the testator’s residence.

Many of these issues are open to different types of legal interpretation and rules that vary state by state. Experience with will contests and a track record of successful litigation and outcomes are the main factors to consider when selecting a will contests attorney. If you believe that you were not treated fairly or were defrauded by undue influence upon the person making a will, call our experienced will contest lawyers for a no-cost no-obligation opinion on your options.

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