The death of a loved one is crushing. The loss can be even more upsetting when his or her estate goes through probate, and you take issue with the will.
In these cases, contesting the will may be an option. However, it is crucial to understand whether you can contest a will and what happens if you do.
Grounds for contesting a will
If a will does not appear to be an accurate reflection of the decedent’s wishes or beliefs, voiding it can be critical in protecting the beneficiaries and the testator (the will-maker).
However, overturning a will means setting aside what looks to be a person’s last wishes, so the courts do not make these decisions lightly. Eligible parties may only contest a will under specific circumstances. These circumstances include:
-
- Allegations of undue influence
- Evidence of fraud
- Ommission of a spouse or child
- Incapacity of the testator
- An outdated will or unenforceable will
In other words, to contest a will, you must show that it is invalid, the will-maker was not mentally fit to sign the will, or he or she was coerced or manipulated.
What happens when you contest a will
In some cases, will contests can be resolved early through mediation or negotiation. In other cases, it goes to trial. In very broad strokes, the process of contesting a will starts with a person filing an objection with the courts. At the trial, this party will have the burden of proving the reasons for rejecting the will. Both the proponents of the will and the contesting parties will have an opportunity to argue their case.
If the court agrees with contestants, it may set aside all or parts of the will.
Contesting a will is a big decision, and it can create tension between family members, beneficiaries, executors and other parties involved.
However, when a person cannot speak for himself or herself, contesting a will that does not align with his or her true wishes can help protect the person’s legacy and the rights of those left behind.