Common Reasons Why A Family Member Disputes a Will

common reasons why a family member disputes a willThe worst legal, emotional and often financial nightmares begin when someone in a family seeks the court system’s intervention to modify or set aside a loved one’s will.

Estate disputes can last for years and sometimes do not conclude until well after the heirs themselves are deceased.

If you wish to dispute a will (contest it), you must be one of the people who can contest it under probate law. This means you must be the spouse or a child of the deceased or you must be someone mentioned in the will or in a previous will.

A last will and testament can only be contested during the probate process when there is a valid legal question about the document or the process under which it was created. The will challenge begins when an interested party notifies the court of specific legal reasons why that party believes the document is not valid.

Four Main Reasons Why a Will Can Be Contested

The manner in which the will was signed and witnessed

Execution is all about how the will was signed and witnessed. If the testator (person who wrote the will) signed it, and there were two witnesses and it meets all other state requirements, there is generally no problem with the document’s validity. If the signature is not that of the maker of the will or a witness didn’t actually sign the will, there could be questions about execution of the will.

The mental capacity of the testator when the will was signed

One of the most common arguments put forth in a will contest is that the person signing the will did not have testamentary capacity or mental capacity. This does not mean the person has to be 100% mentally capable. If the testator understands his or her assets, what he or she has to give away, if he or she understands who their heirs and beneficiaries are and understands the effects of the will, this person is deemed to have the mental capacity to make a will. Even some people in the early stages of dementia can meet this standard.

A person who is having trouble with mental capacity can also experience “lucid” periods when they function rather well for a time. One can prepare a valid will during one of these moments.

Undue influence

A will is also invalid if it can be determined the testator was unduly influenced at the time of signing. An example of this is a full-time caretaker who has taken complete control of all of an elderly person’s assets and day-to-day decisions who is influencing the senior to agree to just about anything– including signing a will that may not reflect the elderly person’s intent.

Sometimes someone hands an elderly person a document and tells them it is a health care proxy or real estate contract. The elderly person is really signing a will but they are not aware of it. This is fraud and a will signed under these circumstances can be shown to be invalid.

Red Flags for Potential Litigation of an Estate

If there are any of the conditions listed below, you can anticipate a possible will contest.

Second or multiple marriage situations – This seems to be a case where no pre-nup and bad or no estate planning is common. In these instances, the children often lose and must go to court to fight the surviving spouse for a portion of the estate.

If some or all of the deceased’s children have been left out of the will – Regardless of the situation, when someone has been intentionally disinherited, they will usually try to contest the will, particularly if there is a considerable sum of money at stake.

When one child is favored over another in a will – This by itself is not grounds for a will contest, but emotions and sibling rivalries run high when such discoveries are made and this all too often leads to litigation.

When one child steps in as caregiver – This often leads to that child taking over the finances of the elderly person and coming to believe they are entitled to a bigger portions of the assets because of their status as a caretaker.

When a neighbor, friend or distant relative starts influencing the elderly person and the estate plan is altered to favor someone other than the natural heirs.

Creating a non-standard estate plan – For example, leaving gifts to a mistress would be an exception to the rule. These types of bequests increase the odds for probate litigation after death.

Faulty estate planning – A large portion of probate litigation can be prevented by good planning. Faulty planning is sometimes the result of incompetence and/or lack of experience on the part of the person who prepared the plan. Other instances of inferior planning are the result of individuals trying to do things themselves that are not well thought-out.

Make sure the persons you hire to help you in fiduciary matters are completely trustworthy and responsible. The same should be said of the person you appoint as executor of your will.

Failure to follow-up on the estate plan – The estate plan must be reviewed on a periodic basis and any necessary “homework” to update it must be done. After marriage or divorce, the will, account titles and beneficiary designations must be changed. It is also a good idea to plan ahead for possible mental incapacity by having the appropriate documents in place.

Advice for Writing a Will

Deal with your lawyer independently

If you consult with an attorney on estate planning advice or drafting documents, keep your relationship independent of influence from others. Choose an attorney who is recommended by friends or others whose views you respect. Do not choose someone who has done work for anyone your estate will benefit.

Avoid surprises

Whenever possible, explain why you are making certain decisions you are making in your will and explain them while you are still alive. For example, tell your son that he will be receiving less than your daughter because you paid for his graduate school education and you did nothing similar for his sister. This can eliminate some of the confusion and frustration people experience when they do not get what they expect.

What Happens When The Court Deems a Will Invalid

Courts look at all of the facts in the case and make a decision based on what is provable. If the will is ruled invalid, the entire will could be thrown out. If there is an earlier will in existence, it could be put into place instead. If there is no other will, assets could be distributed by the court according to state intestacy laws. These are rules applied to divide an estate when there is no will. It is also possible part of the will could be upheld, leaving the court to interpret how the rest of the estate should be handled.

For additional information about will and estate disputes or to request a free and private consultation with one of our highly experienced Ohio probate attorneys, please contact us by calling 1-888-467-5105, chat with one of our 24-hour live chat representatives or send us a website message. We make ourselves available at all times, including evenings, weekends and holidays. So contact us at your convenience.

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