Someone contested the will: now what?
The death of a loved one is one of the most stressful and emotional times in life. And when you add family conflict to this mix of emotions, the results can be disastrous.
When someone contests a will, it only adds fuel to the fire. But contrary to the plethora of soap opera plots which detail this kind of thing, a will contest is actually pretty rare — and it’s even rarer that people succeed in contesting a will.
Still, anyone facing a potential will contest also faces the possibility of losing a lot of money and time fighting the case.
Here's what to do if you find yourself in the difficult position of a will contest.
Why would someone contest a will?
The main thing that you need to know about wills and probate contests is that there needs to be a legal reason to do so. Emotional reasons — such as someone feeling that asset distribution is generally “unfair” — are not legal grounds for a will contest.
The main reasons why people contest wills:
- They believe that they are getting less than what they are entitled to.
- They believe that another person listed in the will is getting more than they are entitled to, and thus contest the will in protest of that person receiving certain assets.
- The will is thought to be legally invalid due to a forged signature or a person signing when they are “not of sound mind.”
The first instance may look like a family member appearing “out of nowhere” to make a claim just after a person dies. The second might happen after, for instance, a relationship with an elderly party begins just before that person's death and then suddenly that new person is in the will.
If the court finds that there is a valid legal reason to contest the will and they proceed with that process, it will be done as a part of probate and is up to the court to officially determine its validity. This typically extends the probate process, costing all parties more time and money.
Thus, it’s highly recommended to take every precaution necessary to ensure that your will is fully legal and valid as part of your end-of-life planning.
What is a valid will?
A will is deemed valid when the signee (testator) was in their full mental capacity, that the signature is original or is signed by a valid Power of Attorney, and that the witnesses’ (most states require two witnesses) signatures are accurate and valid.
If the will is not signed or the required number of witnesses did not sign, the will will not be valid. If there is a more recent valid will, it supersedes any prior versions of the will.
Someone may believe that they have grounds to contest if they believe that there is a problem with the signature or witness signature — for instance, if it is forged or otherwise fraudulent. In this case, it may be legally invalid.
It may also be the case that a will is not legal if the person who signed is not of “sound mind” and may have erred in their decision or not been able to read it properly.
Wills may be challenged by anyone who has officially been:
- Named in the current will
- Named in a previous will
- Named in the codicil (a supplementary part of a will)
- Next of kin, and would be an heir if there was no will
Proving the validity of the will is part of the probate process.
Asset laws & family disputes
What happens if discrepancies about assets arise? How are they handled after death?
And what do you do if family members are squabbling?
Typically you will have a will which needs to pass through probate, but some assets don’t need to go through probate because they will be automatically transferred.
There also can be discrepancies if there is different beneficiary information on different documents, or if people are disinherited from the will but don’t know it (in some states, for instance, relatives can be disinherited, but spouses can’t).
What to do if a will is contested
A Last Will and Testament is a legal document, which means that law supersedes any preferences of family or other parties who may want to contest it. In the case of a family disagreement for instance, most of the time this will go away since in most cases wills are created as provable legal documents.
If someone in your family contests the will or codicil and this is subsequently also proven by the probate court, the will could be declared fully or partially invalid. This will be determined by the probate court. In this case, an earlier version of the will could be a substitute for the new version.
If there is no other will, the court will determine how assets are distributed.
How to prevent a will contest
There’s no way of “knowing” ahead of time about a will contest, so the best protection is in careful planning of your assets and estate.
In order to prevent family members from contesting a will, you need to ensure that the will is fully valid, legal, complete and up-to-date. It’s a good idea to check with a professional who can advise you on how to do this, and whether or not you need an estate plan as well.
If you prefer to keep your assets private because you are worried that questionable relatives may demand more out of the public will, one option is to get a revocable living trust.
Trusts don’t go through probate and, so long as they are legally valid, they can’t be contested. If all of your assets are in a trust, you may not even need an actual will, but many estate plans have both.
You can also get a no contest clause, which means that anyone challenging the will gets nothing — in some states these have more bearing than others.
It’s worth also noting that in most regions (state laws) you can’t write your spouse out of your will but you can write out other relatives
If someone’s mental capacity is being questioned while they are creating the will, it’s a good idea to actually record the signing.
Whether you are creating your own will or you are a beneficiary, talk to your family ahead of time clearly and honestly as soon as possible.
Need to resolve a contested will?
Do you have questions about probate, or are you concerned about a will contest? We’re here to help. Book a confidential call with us and we’ll be happy to answer your questions and help guide you towards the best plan of action.