As any attorney who has contested a will for a client can tell you, not everyone will be pleased with the way a decedent handled his or her will and disposition of assets. However, simply because you did not wind up with what you feel you should have gotten does not necessarily give you the grounds to mount a challenge to the will.
But sometimes it might be worth the time, money and effort. How can you determine whether a will challenge is valid and whether or not you stand a chance of succeeding?
What the court will consider
People have the right, within certain parameters, to do what they wish with their possessions and assets. This gives them great latitude to parcel out an estate to those whom they choose, or to leave property or financial gifts to institutions or charities.
Yet there are certain circumstances when an heir or beneficiary can challenge the terms of a person’s will in court. So, what could lead to a legal challenge over a will?
- Fraud. If you can provide evidence that the decedent was somehow tricked into writing or altering a will already in place, the court can invalidate the will. This can be hard to prove, however. But it is possible, especially if there are third party witnesses to attest to same who have no stake in the case.
- Undue influence. Did a sibling badger or pressure your mom or dad into changing their will in order to leave your sibling the lion’s share of the estate? Again, another difficult allegation to prove. Timing may be critical here if the changes were made after dementia or other conditions affected the testator’s judgment.
- Lack of capacity. Testators must be mentally capable of determining their wishes at the time they create or change a last will and testament. Diminished capacity on the part of the testator could invalidate the document.
- Improper execution. Wills have strict guidelines that must be followed for them to be valid. Failing that, a challenge could be launched that it was never valid.
Weigh the costs of a testamentary challenge carefully
What will challenging the will ultimately cost you? The financial costs alone are not insignificant, but that may be the least of your worries. A will challenge can cleave a family in half or split it into factions, causing rifts that may never heal. Is it worth it for a few thousand dollars or a piece of property?
Many clients find that while they believe that their parent unfairly favored one or more siblings or other heirs over the others, it just wasn’t worth all the negative repercussions to mount a court battle against their blood relatives.
But what if the estate is worth millions? Only you and your attorney can decide whether to push forward and file litigation in the matter. Sometimes you can reach a solution without filing a lawsuit if the parties agree to mediation. However, these situations must be handled very carefully to avoid bad feelings all around.