Can a will be contested? This is one of the most asked questions by people who are facing issues with their will and would want to know if they can go ahead to contest it. The answer is yes, but contesting a will is not an easy subject as you would need to know the process involved and the requirements before you can go ahead in challenging a will.
Before a person can contest a will, grounds must be ensured for a case to be valid. It might be on the ground of fraud, forgery, testamentary capacity, and undue influence. Also, if a person feels he has been unfairly ignored in a will, it is the person’s right to contest the will and must do so on time. The person must apply for a caveat so that the assets of the estate won’t be shared until the dispute is resolved. The caveat acts as formal notice to show that there is interest in the property for a reason.
It does not mean that contesting a will after probate has been granted it is impossible. A probate is a legal process that involves proving in court that a will is valid so that the deceased property can be distributed. Therefore, it is only wise to contest a will before the probate is granted to avoid a long process and reduce expenses.
When contesting a will after probate, you need to let the executor know so that they won’t start the distribution of the estate yet. A caveat is valid for six months and can be renewed if it expires.
Legal Grounds for Challenging a Will
Before one can contest a will, one must find legal grounds. One cannot just contest a will because of personal reasons. For instance, you cannot challenge a will simply because you do not like the terms. There are four important grounds for contesting a will, and if any of the four grounds are found to be correct, a last will and testament can be invalidated. The entire will won’t be useful and the estate will proceed as though there was never a will.
1.) The will wasn’t signed
This is the most common reason why a will is not considered valid. The person who created the will must sign the will in the presence of two witnesses before a will can be considered as valid. The testator and the witnesses must also sign while the others are watching.
2.) The testator lacks the capacity
To avoid challenging a will in the future, the testator must be aware of drafting his will and should know the repercussions of the decisions in the will. But this is not the case, as many testators are not in the right frame of mind when drafting their will. It might be due to dementia or other health issues. To have the testamentary capacity to make a will, the testator:
3.) The testator was unduly influenced
If the testator was forced to write the will under unfavourable conditions or with a threat from someone, then it means that the decision about the will has been influenced, and so the last will and testament are invalid. Threats, verbal abuse, and nagging are not enough ground to establish undue influence. But actions like:
- meeting with the testator solicitor about the will
- paying the will
- separating the testator from the family
These are serious offences where the will can be contested. It is very difficult to prove an unduly influence case.
4.) The will was forged
Another ground for contesting of a will is when the will is forged. An outsider might decide to sign a will that was meant to be signed by a testator and claim it was signed by the testator. In such a case, a handwriting expert is brought in to help find the difference between the signature on the last will and testament and that of the deceased.
Steps on How to Contest a Will
To contest a will, you have to follow a particular procedure, after which the jury will give the final verdict. The process is not difficult when you know the necessary steps to follow. At My Estate Planning, we show our clients the steps to take when one wants to contest a will so that such a person won’t have to go through stress. The steps on how to contest a will are as follows;
Step #1: Determine the validity of a will
Furthermore, not everybody has the right to contest a will. You can only contest a will if you are named a beneficiary in another will or an heir-at-law.
Step #2: Suit filing
The next step to contest for a will is to file a suit. The procedures in suit filing are as follows:
During the filing of the suit, the interested party, a person who will be affected if the will is probated, will provide the court with evidence to show that the will is void. For instance, an interested party that challenges a will on the ground that the testator lacked the capacity to draft a will have to undergo the burden of showing that the person was incompetent at the time of signing the will.
2.) Drafting a complaint
The interested party then draft a complaint stating his claim and wants after the case has been resolved.
- Filing the Complaint – The drafted complaint is then filed in the court by paying a filing fee.
- The defendant will be notified with a summon.
Step #3: Proceed to trial
After suit filing, the next step is to proceed with the trial. The trial is the final stage whereby the jury gives his verdict. The procedures in the trial are as follows
1.) Seek discovery for defendant’s document
Seeking discovery means that the interested party wants to know the proof that the defendant has that makes him feel the will is right.
2.) Attend hearing
After seeking discovery for the defendant’s document, both parties will now go to the court to attend the hearing. They are both allowed to present their case. The hearing aims to give both parties the opportunity, especially the person who may have felt deprived to fight for the right in the will.
3.) Call the witnesses
During the court session, the witnesses are called to testify whether the will-maker is the one who signed the will and if it was done in a right state of mind or whether the will-maker was under undue influence. The last will and testament are one of the few documents that require a witness because, by the time the will takes effect, the person who signed it will no longer be around.
4.) Show the evidence
At this point, the interested party comes forward with proof of why the will is void, and the defendant counters the point by showing why the will is valid. For instance, if the interested party says a testator didn’t have a sound mind when drafting the will, a piece of evidence must be provided before the jury to decide if it is true.
5.) Final Verdict
After hearing the cases presented by both parties, the jury decides if the will is valid or void.
The duration of the trial takes about 12 to 14 months
What Happens After Contesting a Will
The whole process of contesting a will does not end with the final verdict by the jury. There is an after effect, especially when one loses the case in court. That’s why it’s advisable to seek the advice of a legal counsel before contesting a will.
In most times, the court will order you to pay for the decreased cost if you are unsuccessful in disputing a will and if you don’t hire the services of no-win, no-fees will dispute lawyers, you will also have to pay for the lawyer’s service.
Furthermore, if you won the case by the jury declaring that the will is invalid, the previous will is going to stand. But in situations where there is no previous will, the rule of intestacy will apply. The rule of intestacy is applied when a person dies without preparing a will. In such conditions, the court distributes the assets of the deceased among the spouse, children, extended family, and descendant. If the deceased doesn’t have any family, the assets are returned to the state.
At My Estate Planning, we insist that It is essential to seek the opinion of will dispute lawyers before going ahead to contest a will. This is because a lawyer can ascertain if you have the right to contest for a will, and they can better explain the grounds for contesting a will. After that, they can evaluate the will to know if it is worth the stress, time, and money that you are going to invest in pursuing the case.
The cost of contesting a will is very expensive. That is why one of the services we offer is the drafting of a professional will for clients so that in future, it will be impossible for a person to contest your will as he won’t have any ground to do so. We encourage you to secure your future and those of your loved ones by purchasing one of our plans and if you have any inquiries, please feel free to contact us at any time of the day as our team is on standby to help you.