A death in the family can easily disrupt day to day life, especially when it involves a family business or when assets must be managed or distributed following one’s death. During these times, a will must be in place for proper management and distribution of an estate. However, there are cases in which a will is contested or challenged. But what is the difference between the two? When someone contests a will, it means that this individual feels that he or she has been wrongfully or unfairly left out of a will. On the other hand, a will is challenged by an individual who strongly believes that the will should be struck out entirely because the testator, or the person who wrote the will, was either ill or being manipulated to change their will. While will contesting may be a tedious process, you can enlist the help of estate lawyers to support you in making informed decisions. Here is a general overview on how to contest a will.
The Basics of How to Contest a Will
It is never easy to arrive at a decision to contest a will. There will be certain financial and emotional motivations to consider before deciding to contest a will, especially if you believe that you are wrongfully left out of it or if you feel that the estate is unfairly being distributed. But when someone contests a will, you must know that seeking legal counsel is always a sensible step forward. Whether you are pondering on contesting a will or merely want more sound legal advice from estate lawyers, seeking legal counsel will not only provide you more information, but will make the will contesting process clearer to you and your loved ones.
Determining who can contest a will
The primary question on anyone’s mind when it comes to estate disputes is, who can contest a will? More often than not, blood relatives such as children, siblings, or parents are the ones who most often contests a will. Spouses and creditors also often contest a will, especially when the estate owes a creditor money or when a spouse or other family member relied on the testator for financial support. If you are someone who was named in a previous version of the will but is no longer part of the latest will, you may also contest the will.
Contesting a will can also be done on behalf of someone else, such as a minor, or a person who is physically or mentally incapacitated. If you happen to be an executor of a will that you feel you should contest, it is advisable by estate lawyers to seek legal counsel and if there are conflicts of interest, resign from the role of executor.
Defining the grounds for contesting a will
Contesting a will is often a challenging feat, especially if you are not familiar with the laws that surround execution of wills and estate distribution. Depending on which state or country you live in, there might be certain laws that you can use to your advantage if you decide to contest a will. If you are unfamiliar on how to contest a will, it is best that you seek legal counsel from estate lawyers who specialise in these types of cases.
For those who are already familiar with how to contest a will, you might already know that there are various grounds for contesting a will. According to FT Adviser, one reason may be a lack of due execution, which means that a will might not meet the requirements set by the specific law in your area. Generally, a will must be in writing and signed by the testator, which signature must be acknowledged by at least two or more witnesses who were present during the signing of the will.
As wills are often written towards the end of one’s life, many testators are often old or senior citizens plagued with various ailments, including mental incapacity. Some claimants often take advantage of the testator’s old age, citing age-related illness as a reason why the testator’s will might have been wrongfully written. FT Adviser reports that the lack of knowledge and approval of a testator is one of the grounds for contesting a will. Similarly, undue influence is one of the most common grounds for contesting a will. Undue influence often refers to the testator being coerced into writing a will that might benefit certain beneficiaries and leaving out certain individuals. Other grounds for contesting a will include fraud, forgery, insufficient and appropriate witnesses, and an unsigned will.
Filing a family provision claim
If a claimant wants to contest a will, a family provision claim may be filed. A family provision claim is an application to the court to request for an adequate provision from the estate of the testator. In order for this to be filed, three conditions must be satisfied: the claimant must be eligible, the testator or the deceased must have had a moral duty to provide for the claimant, and that the distribution of the deceased’s estate as indicated in the will failed to provide an adequate provision for the claimant’s rightful support.
Coming to a dispute resolution
Not all estate disputes end up in court. In fact, when a claimant contests a will, both parties may come to a mediation and dispute resolution that does not involve the court. These mediations are facilitated by an estate lawyer who aids both parties in reaching a negotiated settlement or a dispute resolution. The advantage of a dispute resolution is that it may cost less than having a trial and the financial consequences of the result of the trial.
If you are considering seeking legal advice on how to contest a will, get in touch with Hentys Lawyers today. Our estate lawyers operate on a No Win No Fee basis, ensuring cost-effective solutions to any estate dispute. With over 25 years of experience on will contesting and estate disputes, Hentys Lawyers are ready to deliver high quality, dedicated, and compassionate service to clients like you.