Will Contest

The reading of a will after a person's death can be an emotional time, especially when the stipulations of the will are not what was expected. Family members, close friends and loved ones sometimes have reason to believe that the executor not operating under his or her mental capacity or may have been manipulated by an outside party when determining the ultimate distribution of their assets.

If a person does not believe that a will does not accurately indicate the testator's wishes, then that person may dispute the will through a will contest. There are only certain people that may contest the will: beneficiaries and persons who would inherit money if the will was proved to be invalid. These individuals may try to prove that the testator was one of the following:

  • Mentally incapable
  • Under influence
  • Defrauded
  • In conflict with state law

The grounds for contesting a will can often be complicated, so obtain legal counsel from a competent estate planning attorney in your state. Be prepared that contesting a will often takes months or years to resolve and will require many expensive fees.

Will Litigation Process

To dispute a will, you must begin the process by filing the initial petition with the probate court. You may take legal action, called a caveat, before the will is admitted to probate. This will put the probate court on notice that the will cannot be admitted until you have put in your petition. The will cannot be admitted for at least 10 days in order to allow time for a person to file a caveat. If you file after the probate process has begun, then you only have 30-90 days to submit your petition, depending on the state.

Once your petition is filed, it is up to you to provide evidence that the will is invalid. Submit all relevant documents to your attorney so that he or she can help you prepare for the first step of the lawsuit, mediation. During mediation, both parties and their legal representatives try to settle the case before it goes to trial. If a compromise cannot be reached, then your case will go to trial. The judge or jury will hear evidence for both sides, and then will come to a decision about your dispute.

Will litigation is a complicated process that will need to involve a probate attorney to ensure that the matter is attended to correctly. It is important to take action on behalf of your lost loved one, making sure that their true wishes and desires are followed through with after their death.

You need not worry that a contest will forfeit any benefits that may have been coming to you because a successful challenge will negate any statements documented. Therefore, even if there is a no-contest clause in the will, should you successfully prove that the conditions of the legal document were made falsely; the clause will cease to matter. For more information about how to contest a will, you can ask a licensed probate lawyer in your state.