Trusts and Estates

Challenging a Will May Leave You with Nothing

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Challenging a will is difficult, but it can be done. You can challenge a will if facts indicate that the will was not properly made or was the result of fraud, mistake, or improper influence on the person who made the will - referred to as the "decedent" after death. Each state has probate courts where any challenges to a will must be filed. Whether a challenge is in your best interests depends on the laws of the state where it will be filed.

Lack of Capacity

A valid will requires that the decedent possessed "testamentary capacity," sometimes referred to as having a "sound mind," at the time the will was made. The decedent must also have met the state's minimum age requirement. Challenging a will on the basis of capacity typically requires showing that the decedent did not understand the nature and extent of the property or the identity of natural heirs. Typically, such a challenge requires medical evidence showing mental impairment.

Undue Influence

A challenge of undue influence means the decedent did not make the will of free choice, but solely due to the improper influence of another person. A common situation that leads to such a challenge is where a lone sibling cares for an infirm parent, and the caregiver sibling receives a greater portion of the parent's estate than other siblings. This is particularly true if the parent has changed his will while under the care of the sibling and if this fact was kept secret from the other siblings.

Fraud, Mistake, or Other Factors

A will can be challenged for fraud, such as when pages have been inserted after the decedent signed the will or the decedent's signature is forged. If the will was not executed properly, with only one witness signature when two are required, for example, the will can be challenged as invalid. Sometimes a will that has been previously revoked is mistakenly (or purposefully) submitted for probate. This version will be rejected when the superseding will is provided.

Challenges Are Handled in Probate Court

You challenge a will by filing an appropriate petition in the state probate court that has control over the decedent's estate. The type of petition, the basis for the challenge, and the likely results depend on the state law where the court is located. Each state's law has its own rules, which can differ greatly. These include the deadline for filing your challenge and whom you must notify regarding your challenge. Violating these rules can delay and increase the expense of your challenge, or result in it being lost.

Disadvantage of Challenging a Will

Challenging a will because you believe your inheritance should be greater usually involves a risk a violating the "no-contest clause" that is typically found in a will. If your challenge fails, the will is valid and the no-contest clause will prevent you from receiving the inheritance left to you in the will. State law varies regarding the conditions under which a no-contest clause is valid, so it is important to know the law in your state before challenging a will.

A Probate Lawyer Can Help

The law surrounding challenges to a will is complicated. Plus, the facts of each case are unique. This article provides a brief, general introduction to the topic. For more detailed, specific information, please contact a probate lawyer.

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