5 Legal Options to Help Contest a will Successfully
by Arina Smith Management 30 October 2018
A person’s last will and testament is a legally binding document that provides specific instructions for which parties receive a deceased person’s money and property. It also makes one individual responsible for settling the estate. When you file a will contest, you’re filing a special category of lawsuit that aims to invalidate the will of a deceased person.
If your consideration of the contest is because you think the deceased party’s final wishes were not reflected by the will, you should be careful. Will contests cost money, time, and sometimes your familial relationships. They’re very emotionally draining.
With that said, these are the 5 legal options you have to proceed. They will all help you file a will contest, which is the main course of action you need to take.
5 Legal Options and Steps for a Successful Will Contest:
1. Hire an attorney
You need an attorney to help you. This is a huge undertaking that is legally classified as a lawsuit. The other involved parties will get their own legal representation to fight the contest. Will contests are also notoriously hard to win. The odds are already stacked against you, and trying to handle the case alone will just make things worse.
Get an attorney who’s experienced with negotiating estate law and Brisbane wills. Ideally, you should hire someone who has successfully contested wills before. They’ll understand the procedure and help you complete the rest of the steps to the best of your ability.
2. Prove you have enough standing to contest.
Wills can’t be contested by just anyone. Legally speaking, only an entity or person with standing is allowed to contest a will. This means that to be involved in the lawsuit, the outcome of the case must personally affect you. You either need to be a beneficiary named in the first will, or you need to be an interstate heir. Entities can contest if they were named as the beneficiary or fiduciary in the previous will.
If you’re not a person with standing, there’s no legal recourse to file a will contest.
3. File the contest in a timely manner.
If you do have standing, you need to make sure the contest is filed in time. Different locations have different regulations regarding how long the involved parties have to file a will contest.
The legal case will use the laws in the place where the deceased person last lived. Time periods might be a few years, but they may also be just a few weeks. There’s a huge amount of range.
The time is limited to make sure the final expenses payment and property transfers can be done at an expedited speed. If the time was unlimited, it would be impossible to completely distribute an estate because of the worry that it might be contested. If too much time has passed, you won’t be able to file the contest.
4. Establish grounds to contest.
After you’ve determined that you have the time and standing for a contest, you also need to have grounds for a contest. Contesting a will can happen in four circumstances:
- The will did not include the necessary legal formalities and signatures
- The descendant did not have the mental capacity to create a will
- The descendant was falsely influenced or forced into making a will
- The will is fraudulent
It’s difficult to prove any of these circumstances. Your probate attorney will review the evidence and determine whether you have a case.
5. Identify fact patterns that can cause a successful contest.
It’s rare for a will contest to be successful. Generally, people presume that if an individual sat down and wrote a will, then that’s the valid will regardless of legal formalities. All of that said, there have been certain patterns in the past that have caused successful will contests. You should become familiar with these and go over them with your lawyer. Your lawyer will identify whether any of these patterns occurred and build the case around that.
Types of Fact Patterns That May Cause a Successful Contest
If the will was completed by the deceased without any legal help, it’s possible that certain legal formalities might be forgotten or done improperly. There’s also a common problem within do-it-yourself wills in that, not every “what if” is properly addressed.
In the Florida case Aldrich v. Basile, the court decided that the will was, in fact, valid, but it didn’t address the entirety of the Testator’s property. The property that was excluded was passed along using Florida intestacy laws rather than the terms laid out in the will.
It’s common with successful will contests for the Testator to have been isolated from friends and family by the main beneficiary of the will. Basically, this happens in cases where the main beneficiary purposefully cut other people out of the Testator’s life to ensure they would be the only or main beneficiary of the estate. When it comes to will contests, these wills can be invalidated on grounds of undue influence.
There have been some successful contests when the Testator’s mental capacity was questioned. It’s hard to provide proof that they lacked an ability to make a will at the exact moment it was signed. However, you can use medical evidence or other forms of evidence to show that the Testator’s mental ability was not cognitive enough for the creation of a will.
If you intend to contest a will, you have a long and hard battle ahead of you. However, the task isn’t impossible. As long as you go through the appropriate legal channels, file your paperwork in time, and hire an experienced attorney, you have a
good chance of having your case considered. Just keep in mind that the battle will probably be long and costly.