Thinking Of Challenging A Will? Read This First

Are you thinking about mounting a challenge to someone's will? It's unfortunate whenever a will creates family strife or unpleasant feelings among the deceased's heirs. When that happens, it's not unusual for one or more of the heirs to think about contesting the will's validity. However, a legal challenge to a will isn't easy. Before you decide to move forward, this is what you should know.

Challenging a will is an expensive process

Challenging a will isn't cheap. It can take hours for an attorney to review the will and other documents. It may take expert testimony, and the experts will have to be paid. It can take numerous depositions of witnesses. There are fees associated with every court filing. 

Essentially, you need to be prepared for the expense of a legal challenge. You have to balance those potential costs against the potential benefits if you can win. If the benefits vastly outweigh the expenses -- and they often do -- that's the time to move forward.

There are only five basic ways to challenge a will

To challenge a will, you have to have a legal reason to do so. The fact that you simply believe it to be unfair isn't enough for the court. The law recognizes five basic challenges:

  1. The will is fraudulent -- If you believe that the signature on that will doesn't belong to the deceased or there's some other reason that the will is a fake, that's enough to bring a challenge. However, you'll have to prove the accusation in court. The court starts with the presumption that the will is authentic.
  2. The will was achieved by fraud -- That means that someone handed the deceased the will to sign and he or she signed it without understanding what it said or what it was. This is the purpose of having a will witnessed, so the testimony of the will's witnesses will be important.
  3. The deceased was incapacitated when the will was signed -- It's generally presumed that the deceased was mentally capable to make a will unless there's clear evidence -- like a doctor's letter -- that he or she was suffering from a serious mental defect at the time.
  4. The deceased was unduly influenced -- That means that someone, usually a beneficiary of the will, essentially pressured or forced the deceased into making a will that was favorable to his or her desires. That can happen, for example, when a relative takes control of an elderly person's life and bullies him or her into changing an existing will.
  5. The will is legally invalid -- That means that the will doesn't comply with the state's laws on what it takes to make a legal will. That can happen when someone relies on an online form, for example, instead of hiring an attorney to handle his or her estate planning.

If you're prepared for the difficulty associated with challenging a will and believe that you can prove one of those five things, then it's wise to contact an attorney right way. If you wait, the will may be followed and all the assets disbursed before you can get a court to order a hold on things.

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