Is it possible to win a case in court contesting the validity of a will? It is very difficult because the last will and testament is said to be the voice of the deceased and they, of course, cannot defend or justify why the will says what it says. Wills that are signed and witnessed are hard to contest. There are instances where relatives dispute their loved one’s will on the basis that when the will was created the deceased did not have the mental capacity or was unduly influenced. If this can be proven, the judge may rule to disallow some or even all of the will.
Can Anyone Challenge a Will?
It has to be someone who may have a vested interest, something to be lost or gained if the will is executed as it is written. Most often it is the spouse of the deceased who challenges the will. Others that can legally contest the document are children, parents, other relatives, or perhaps a creditor of the deceased.
Valid Grounds to Challenge
The two most common reasons a will is challenged is the testator (author of the will) was not mentally competent at the time the will was written, or they were mentally competent but someone else unduly persuaded them to write what was in the other person’s interest over the wishes of the testator.
Suspecting that forgery was involved is another reason.
A child or spouse of the deceased may try to challenge the will if they were excluded. Unless there are state laws that prohibit the testator from keeping a child or spouse out of the will it can be difficult to win a challenge for this reason.
Mandatory Components of a Will
The will must state that it is the will of the testator. It has to have at least one paragraph that states they are leaving something to someone. It also has to appoint someone to be the executor to carry out the intentions of the will when it is executed.
The will should be signed by the testator and witnessed by two adults. This is not a mandatory requirement in many states but is useful in verifying the validity of the document.
Steps to Take When You Wish to Contest a Will
The procedure for contesting a will is similar to any other civil claim. A complaint is filed with the probate court from the person who wants to contest the will. The executor has the job of defending the legality of the will. There will be court costs that are paid from the assets in the estate. A probate judge will hear both sides — each side may hire an attorney and a probate judge will decide the matter. Either the entire will or parts of the will can be found to be invalid. If the judge deems the will to be invalid, the assets in the estate are split in accordance with the laws of the state that go in effect when someone dies without a will.
Contact a will lawyer Allentown, PA offers if you are concerned that a loved one’s will was created under duress and is not valid.
Thank you to our friends and contributors at Klenk Law for their insight into estate planning and contesting a will.