Ways to Contest a Will or Trust

Contesting a will or trust can be a long and arduous process for the heirs of an estate. A lack of planning on the part of the testator (“creator” of the will) can lead to jealousy and anger regarding the distribution of assets among interested parties. Before disputing the validity of a will or trust, consider the motives for doing so. Ill will, or the testator making what might be viewed as an “uncaring” or “unsympathetic” decision regarding the allocation of assets, are not grounds for dispute. Unless promised a portion of the estate or property, either verbally or in written or video notification by the testator, claims upon the estate can be difficult and costly to prove.

Normally, soon after the testator’s passing a notice will be sent to all named parties in which a deadline is provided for contesting the will or trust. If there is just cause, it is crucial that application to contest is submitted in writing and legal council is sought, as the process, especially once in probate, can be extremely confusing. Be sure to retain all written, verbal, or video documentation related to the case, as it is largely up to the contestant (the one disputing validity) to prove the document is invalid. There are multiple reasons why a will or trust may not be considered valid, including two of the most common -- lack of capacity and undue influence. If the following requirements are met, the will or trust is most likely fit to be contested.

LACK OF CAPACITY

Simply put, the term “lack of capacity,” when used in the context of contesting a will or trust, refers to the testator’s inability to fully comprehend the actions and ramifications in creating or modifying the document. This could mean that at the time of the document’s creation or modification the testator may not have realized how assets were being allocated, to whom, or that the assets were simply disbursed in a means other than they would have been had the testator been of sound mind.

If the testator sought medical attention for an affliction that affected his or her mental state, then medical records, bills, and witness testimony from doctors and nurses can be gathered as evidence. Statements from the testator’s associates can also but used to prove the benefactor’s mental state. Simply saying that the testator must have been crazy not to leave you your fair share is not going to stand up in court.

UNDUE INFLUENCE

When undue influence is exercised over the testator of a will or trust there can be definite grounds for contesting. This category offers the plaintiff a variety of options as to how they have been slighted. At the same time, undue influence can be the most difficult to prove, as it can often be the one person’s word against another, or heavily subject to hearsay.

Threats forcing the testator to create or modify the terms of a will, such as telling grandfather he won’t be allowed to see his grandson unless he leaves you his estate, can be considered undue influence. An associate or family member influencing the testator through verbal persuasion can also be considered undue influence. A brother badmouthing his sister in front of grandfather at Thanksgiving dinner one year probably won’t be enough to convince a judge the brother has unduly influenced the grandfather to leave him his entire estate. However, if that same brother moves in with grandfather and convinces him that the sister is not worthy of receiving a portion of the estate, it could be construed as undue influence.

INTERPRETATION

It is essential to weigh the benefits of contesting a will or trust before doing so. Litigation costs can consume a large portion of the estate being contested and the process itself can strain family and friendship relations. It is also important to note that the assets of the estate in question will not be disbursed during the time the estate is being contested and that this period can stretch for years depending on the size of the estate and whether there is a trial. If there is a dispute regarding interpretation (i.e. the understanding of the wording of the will or trust), it can be beneficial for all interested parties to attempt to resolve the conflict out of court. Mediation or simply having all interested parties sit down together with legal representation before contesting can save time, money, and keep tensions to a minimum.

Sources:

Jeanne Sahadi. “Contesting a parent’s will.” [Online] 1 May 2000. http://money.cnn.com/2000/05/01/senior_living/q_retire_wills/

Disclaimer:

This article is for informational purposes only. The author is not a lawyer or legal authority. Any action taken by the reader due to the information provided in this article is at the reader’s discretion.