Dealing with the passing of a loved one is challenging enough, and discovering the terms of their will can sometimes add to the emotional complexity, especially if you feel it’s unfair. You might find yourself wondering whether you can legally contest the will and what that process would involve. Here, we’ll walk you through some key considerations if you’re thinking about contesting a will and provide some practical steps to help guide your decision.
Understanding the Basics: What is a Will?
A will is a legal document outlining how a person’s assets and property (known as the “estate”) should be distributed after their death. It may also include instructions about the care of minor children. When someone believes a will is unfair, it often means they feel excluded or inadequately provided for, or they suspect foul play in its creation.
Can You Contest a Will?
Yes, it is possible to contest a will, but you must have valid legal grounds to do so. Contesting a will is not about whether you like its terms, but whether the law has been breached. Here are the primary grounds for contesting a will:
1. Lack of Testamentary Capacity: This means the person who made the will (known as the “testator”) was not of sound mind at the time. For instance, they might have suffered from dementia or another mental impairment affecting their ability to understand the consequences of their decisions.
2. Undue Influence: If someone pressured or coerced the testator into writing the will to their benefit, this is considered undue influence. For example, a caregiver might manipulate an elderly person into leaving all their assets to them.
3. Fraud: If the will was procured through deceit—say, the testator was tricked into signing it—this constitutes fraud.
4. Improper Execution: Each jurisdiction has specific legal requirements for how a will must be executed. For instance, it typically must be signed by the testator in the presence of witnesses. If these requirements aren’t met, the will may be invalid.
Practical Tips for Contesting a Will
1. Assess Your Standing: Make sure you have the legal standing to contest the will. This usually means you would have benefited from the will or from intestacy laws if the will did not exist, like being a child, spouse, or another dependent.
2. Timing is Key: There are deadlines for contesting a will which vary by jurisdiction. Known as the “statute of limitations,” this timing can range from a few months to several years after the will is submitted to probate (a court proceeding to approve the will and oversee the estate distribution). It’s crucial to act promptly.
3. Gather Evidence: Collect evidence to support your claim. For lack of capacity, this might mean medical records. For undue influence or fraud, look for witnesses who can testify about the circumstances surrounding the will’s creation.
4. Seek Legal Advice: Consulting with an attorney who specializes in estate law can provide invaluable guidance. They can help determine the strength of your case and navigate any complex legal procedures involved.
Common Situations and Examples
Imagine a scenario where your elderly parent lived with a friend who helped them with daily tasks. After their passing, you discover your parent’s entire estate is left to this friend, which seems suspect given your longstanding close relationship. Here, contesting the will on grounds of undue influence might be viable if you suspect the friend might have swayed your parent during their declining years.
Another example can be if a will suddenly disinherits a close family member without explanation and other family members witnessed changes in the testator’s cognition recently. In this case, questioning the testator’s capacity when the will was made could be an appropriate course of action.
Conclusion
While contesting a will can be emotionally and financially taxing, it is sometimes necessary to ensure fairness and protect the intentions of your loved ones. Understanding your legal options and taking a practical approach, including seeking professional advice, can help you navigate this complex process. Remember, while the law aims to honor the wishes of the deceased, it also provides mechanisms to correct situations where those wishes may have been compromised.
