Challenging a Will: Difficult Yet Possible.

 

To Challenge or Not To Challenge

Challenging a will is difficult, but it can be done. You can challenge a will on the grounds that the will was the result of fraud, mistake, lack of capacity, or undue influence on the person who made the will—referred to as the “decedent” after death. Each state has their own probate courts where any challenges to wills must be filed. Whether a challenge is in your best interests depends on the laws of the state where it will be filed.

 

Lack of Capacity

For a will to be valid, it is required that the decedent possessed “testamentary capacity”, meaning they must have been considered to be of sound mind and memory at the time of creation of the will. The decedent must also have met the state’s minimum age requirement. Challenging a will on the basis of capacity typically requires showing that the decedent did not understand the nature and extent of the property or the identity of natural heirs. Typically, this kind of challenge is backed by medical evidence showing mental impairment.

 

Undue Influence

A challenge of undue influence means the decedent did not make the will of free choice, but solely due to the improper influence of another person. A common situation where undue influence is present is where one sibling cares for an infirm parent, and the caregiver sibling receives a greater portion of the parent’s estate than the other siblings. This challenge can be strengthened if the parent has changed their will while under the care of the sibling and if this fact was kept secret from the other siblings.

 

Fraud, Mistake, or Other Factors

A will can be challenged for fraud, such as when pages have been inserted after the decedent signed the will or the decedent’s signature is forged. If the will was not executed properly, with only one witness signature when two are required, for example, the will can be challenged as invalid. Sometimes a will that has been previously revoked is mistakenly submitted for probate. This version will be rejected when the superseding will is provided.

 

Challenges Are Handled in Probate Court

You challenge a will by filing an appropriate petition in the state probate court that has control over the decedent’s estate. The type of petition, the basis for the challenge, and the likely results depend on the state law where the court is located. Each state has their own rules, some of which differ greatly from one another. These include the deadline for filing your challenge and whom must be notified regarding the challenge. Violating these rules can delay and increase the expense of your challenge, or result in it being lost.

 

Disadvantage of Challenging a Will

Challenging a will because you believe your inheritance should be greater usually involves the risk of violating the “no-contest clause” that is typically found in a will. If your challenge fails, the will is valid and the no-contest clause will prevent you from receiving your initial inheritance that was left to you in the will. State laws vary regarding the conditions under which a no-contest clause is valid, so it is important to know the law in your state before deciding whether or not to challenge a will

 

An attorney in your state can walk you through the ins and outs of wills and the pros and cons of challenging a will. In Arizona, the Phoenix estate planning attorneys at Kamper, Estrada, & Simmons are more than qualified to assist you in all your estate planning and probate needs. Contact us today!

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