People create a last will and testament (often simply called a will) because they want their wishes to be known after they pass. However, a person’s will is not always the final word on the matter. In some cases, it is possible to contest a will.
Reasons for Contesting a Will
There are many possible reasons for contesting a willing, including if you:
- Suspect fraud. People close to the decedent may write a fake will to steal part of the estate. If you suspect a will is a forgery, you can challenge it and try to have the fraud proven.
- Believe the decedent was the victim of elder abuse. Financial elder abuse is a growing problem. People may take advantage of older adults to be written into the will. If you believe the decedent wrote the will when he or she was mentally incompetent or under undue influence, you can challenge the will.
- Believe another will is valid. When a decedent has multiple wills, it may be difficult to know which reflects his or her wishes. This is especially likely in the case of handwritten wills.
- Are owed part of the estate under state law. In certain circumstances, a relative may be legally entitled to a portion of the estate regardless of what the will says. For example, the Oregon State Bar says spouses generally cannot disinherit each other unless the spouse of the decedent agrees to waive his or her claim. If you believe you are owed a share of the estate under state law, you can challenge the will.
Who Can Contest a Will?
Whether a particular person can contest a will depends on state law. However, if you can answer “yes” to the following three questions, you can probably file a dispute.
- Do you have standing? To pursue a lawsuit or other legal remedy, a person is typically required to have legal standing. Cornell Law School explains that, although state statutes determine what constitutes standing, the concept typically revolves around the requirement that the plaintiffs have sustained, or will sustain, direct harm or injury. Furthermore, the harm or injury needs to be redressable. When applied to the contesting of a will, standing is generally based on whether the person disputing the will would be a beneficiary or receive something different if the claim were successful. For example, if you have been left out of your partner’s will and believe you have a claim to the estate, you can argue you have standing. However, if you want to dispute the will of a celebrity you have never met and have no connection to, you most likely cannot argue that you have standing.
- Do you have a valid reason? In addition to standing, you also need a valid reason. You can’t say you should be a beneficiary because you’d like to inherit the estate; you need to have a legal claim that shows the will is invalid – for example, because the will was forged or the decedent wrote the will under duress.
- Are you acting in a timely fashion? Legal proceedings are subject to statutes of limitations. If you wait too long to file a claim, you may miss your opportunity. If a person’s estate has entered or is about to enter probate, you should contest the will as soon as possible.
How to Contest a Will
If you are thinking about contesting a will, meet with an estate planning attorney. Estate laws are complex and vary between states. An estate planning attorney has the expertise to determine whether you have a claim. An attorney can also ensure you file the proper paperwork with the court.
Avoiding Disputes in the First Place
When carried out correctly, estate planning can prevent disputes.
- Work with an estate planning attorney to craft an airtight estate plan. An estate planning attorney can advise you on the right clauses to include to ensure your wishes are followed. An attorney can also ensure your estate plan aligns with state law.
- Update your will through official channels. You may need to update your estate plan occasionally to reflect changes in your situation. If you do this on your own – for example, with handwritten updates – you may create an estate planning mess in which it’s not clear which will is valid.
- Discuss your estate plan with your family. People are more likely to challenge a will when they are surprised by its contents. You can avoid this situation by making your intentions known and explaining your reasoning. This is especially important if you are leaving some people out of your will or not dividing the estate evenly.
Whether you need to craft your will, update your estate plan, or contest a will, an estate planning attorney can guide you through the process. Contact Skinner Law.