The will challenge is the process of contesting the will of a person, usually by presenting evidence that indicates the will is not valid according to state laws. Your ability to challenge a will often depends on your relationship with the deceased. There are limited legal arguments for challenging a will, and you must be able to prove the validity of your claims. Challenging a will is not easy and may cost anywhere from $5,000 to $10,000.
Definition and Example of a Will Challenge
A will challenge is the process of contesting the validity of a last will and testament after the death of the person who made the will (the testator). The will is typically challenged by someone who believes they should have been a beneficiary.
According to Patricia Davidson, a Massachusetts-based attorney who assists families with issues related to wills, estate documents, and probate, “Many believe ‘I don’t like the terms of the will’ or ‘This isn’t what my mom or dad told me, so I’m going to challenge the will.’ But it’s not that simple.”
To challenge a will, you must have evidence to support your claims, not just suspicion or the possibility of unfairness. Challenging a will is not cheap and requires a strong argument. A vague sense of injustice will not suffice in court.
For example, suppose your mother remarried in the last months of her life to her home nurse, who did not allow you to visit her. After her death, you read her will and discover that she leaves her entire estate, including her house, jewelry, and money, to her nurse and husband. Because you believe you should have been a beneficiary, you might consider contesting the will.
How Will Challenges Work
The grounds and process for challenging a will depend on your state laws, but the concepts are similar. When a will is submitted to probate court, the interested parties receive notice. These parties must contest within the timeframe set by state law. The court then determines whether the will is valid and identifies the heirs, beneficiaries, values, and assets.
It’s important to note that some states have a statute of limitations for challenging a will. For example, in Washington, the timeframe is four months after the will is submitted to probate court, while in Illinois, it is six months.
After a parent’s death, mixed emotions manifest in complex ways, according to Davidson. “Will challenges are often rooted in misunderstandings, guilt, jealousy, and overwhelming sibling rivalry.”
Who Can Challenge a Will?
First, you need to determine whether you are legally able to challenge the will. Typically, the only people who can legally contest a will are those who would have benefited otherwise – for instance, someone named in a prior will or who, under state law, would receive the assets if there were no will.
For example, in Oklahoma, if the will does not name a child or grandchild, they may argue that they were forgotten – not intentionally excluded – and might have rights to a portion of the estate.
The deceased’s children are the most common challengers, according to Davidson. Will challenges are also common when “the deceased had no children and extended family members dispute their alleged inheritance claims.”
Reasons to Challenge a Will
Davidson states, “Most will challenges arise from complex family dynamics, and it can be difficult for an attorney to balance emotional and psychological issues with the legal reality.” She adds, “In many cases, the parties are not only seeking property, but are also challenging the whole power dynamic, especially if one sibling has been appointed as the personal representative or executor.”
According to Davidson, the underlying motivations for challenging a will may include:
- Greed
- Or envy
- Not understanding how estate plans work
- Anger towards other beneficiaries (such as siblings)
- Contradictions between what the deceased said and what the will states
It is important to note that if you had a difficult or estranged relationship with the deceased, it may not be financially wise to contest the will, according to Richard M. Richardi Jr., a Florida-based attorney specializing in elder law and estate planning. It may be easier for other parties to argue that your parent intentionally left you out of the will.
However, to be successful, you must have legal grounds to challenge the will based on state law and present evidence to support your claims. For example, you may need to prove the following:
- That the testator did not have the intent or capacity to draft the will
- That the testator was under undue influence or threat from a third party
- That fraud or mistakes occurred
- That prior wills were not properly revoked
- Other circumstances that led to the revocation of the will
According to his practice in Florida, most challenges involve “undue influence,” especially after a new partner enters the person’s life and modifies the will. He noted that the burden of proof for incapacity is more challenging in Florida; even if the deceased was incapacitated or suffered from dementia, they might have had a “lucid moment” while preparing the will.
The Next Steps: Assessing Your Case with an Attorney
Davidson stated, “Consulting with an attorney is always the right thing to do. An attorney can explain the circumstances under which someone can and cannot attempt to contest a will, the proper process for doing so when appropriate, how long the process may take, the costs involved, and potential alternatives for facilitating resolutions instead of going to court.”
Richard M. Richardi Jr. warned against challenging the will, saying, “You cannot do this alone. These cases are often complicated, and delivering the will is not an easy task.”
Once you talk to an attorney, the discovery process begins, where the attorney gathers evidence to support your claims. Depositions will be taken. Each party will provide records and evidence to support their position.
The next steps depend on your case, the parties involved, and the legal teams and your state. Most of Davidson’s cases in Massachusetts do not go to court, as they typically try to reach a settlement. Ultimately, most cases are settled.
Davidson said, “Mediation is a great tool to help attorneys help their clients reach settlements, stop the bleeding of legal fees, and mitigate the risks of going to court. Mediation gives the parties more control over the outcome.”
If the case goes to court, the judge will hear the evidence and make a decision.
How Much Does It Cost to Challenge a Will?
Generally, you should be prepared to spend at least $5,000 to $10,000 to challenge a will, according to Richard M. Richardi Jr., with many costs related to extensive research and behind-the-scenes work. It is rare for a complaint to settle in just a few weeks.
Some attorneys may work on a contingency fee basis – only getting paid if you win – but that depends on having a very strong case. Richardi said, “With a personal injury resulting from a car accident, you know you’re probably going to get something, but challenging a will is not that kind of case.”
Your success in challenging a will depends on the facts and the strength of your case, according to Richardi. “Your chances are not 50-50, as the burden of proof is on you, and your key witness is dead.”
Frequently Asked Questions (FAQs)
What is the time limit for challenging a will?
The time limit is the period you have to contest the will; after this period expires, you will be unable to challenge the will. The time limit varies from state to state. For example, in Illinois, you can challenge the will up to six months after it has been admitted to probate court.
What
What is the difference between a will contest and will authentication?
Will authentication is the court process to establish the validity of a will and then legally execute it, by paying debts and distributing assets to heirs and beneficiaries. A will contest is the legal process of challenging the validity of a will.
What is the cost of a will contest?
Costs vary significantly depending on the case and location. One study of 443 recent probate administrations in San Francisco found that contested wills had average extraordinary costs ranging from $16,739 to $35,805. However, the authors of the study note that these results may not be generalizable to other parts of the country due to higher median home values in San Francisco County and lower poverty levels, as well as the structure of probate fees in California.
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Sources:
- Illinois Courts. “Will Contest: Introduction.”
- Washington State Legislature. “RCW 11.24.010: Contest of Probate or Rejection—Limitation of Action—Issues.”
- Oklahoma Bar Association. “Do You Need a Will or Trust?” See “Q: May I Dispose of My Property as I Wish With a Will or a Trust?”
- Illinois Courts. “Will Contest, Introduction,” see “A. General Principles.”
- David Horton and Reid Kress Weisbord. “Probate Litigation,” University of Illinois Law Review 2022(3), 1189.
Source: https://www.thebalancemoney.com/what-are-the-grounds-for-contesting-a-will-3505208
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