I will define a will contest as a lawful challenge to the authenticity of an estate plan. It is not uncommon for beneficiaries of the estate of a deceased person to disagree with the purported wishes of their mother or father. The disgruntled person is usually the one who feels what has been allocated to him is less than he should have. If he manages to contest successfully, he will receive a bigger portion of the estate than what was originally assigned to him. Remember that you should stage a will contest only after the owner of the estate passes on. Read on for deeper insight into who is eligible to contest a will, legal grounds for contesting a will, the procedure to follow when contesting a will, and the cost implications of contesting a will.
Who may challenge
Of course, not every Tom, Dick and Harry has the right to contest a will. To do so, you must be an interested party in the estate plan. In other words, a portion of the estate under contest must have been allocated to you. You are contesting because you are likely to lose something if the will is executed as written. Statistics have it that spouses of the deceased are the ones most commonly involved in will contests. Children, parents, and relatives of the deceased have also been involved in will contests.
Grounds for contesting a will
We shall look at six legal grounds for contesting a will. These include:
1. Lack of testamentary capacity
2. Lack of valid execution
3. Lack of knowledge and approval
4. Undue influence
5. Fraudulent or forged wills
6. Rectification and construction claims
Lack of testamentary capacity
Utah law clearly stipulates that the testator must be of a sound mind at the time of writing and signing a will. The will is only valid when the testator:
– Is aware that he is making a will and knows the consequences of the will
– Knows the actual value of his estate which he intends to distribute among the named beneficiaries
– Knows the repercussions of including some beneficiaries in the will and leaving out others
– Is free from any medical condition that may cause him to make irrational decisions
This is normally the first port of call whenever you think of contesting a will. Ask yourself, “Did the testator have testamentary capacity?” If the answer is No, you are good to go on with the contest.
Lack of valid execution
There are a number of legal requirements that a will must meet in order for it to be legally binding. Some of the requirements concern the testator while others concern the will itself. If a will does not meet any of these requirements, it is said to lack due execution and thus can be legally contested. Below is an outline of some of the legal requirements that the will must meet.
– The testator must identify it as a will
– The testator must revoke all previous wills and codicils
– The will must be in writing
– The will must be signed by the testator, or in the event that the testator is unable to append his signature, he may direct some other person to sign on their behalf, provided that the testator is present as the will is being signed.
– The will must be signed by two witnesses. These witnesses should be present as the testator or his representative signs the will.
– The testator should appoint a guardian where minor children are involved.
– The testator must provide a formula for sharing the estate.
– The testator must be over 18 years of age.
Allow me not to get into the finer details of who can or cannot act as a witness to a will. I find it worthwhile to mention at this juncture something about revoking a will.
The testator, while alive, has the option to revoke a valid will. This can be done in a number of ways. The most obvious is changing the contents or adding to the contents of the will before passing on. This is possible provided the testator is still mentally capable of doing so. The change here does not imply crossing out details on the original will and scribbling in new ones. The testator has to follow all the legal procedures as was required in the original will. Another option is to write a whole new will. In such a case, every page of the old will has to be signed “revoked”. The revoked will should be kept as such so that nobody later on mistakes it as a lost will. A more interesting method involves tearing up the old will in front of the lawyer and signing the new will.
So make sure the will you want to contest is not a revoked will.
Lack of knowledge and approval
The testator must understand the contents of the will and approve them. In case you have doubts about whether the testator really understood the contents of the will, you can go ahead and dispute the will. Be prepared to prove that the testator did not fully comprehend the contents of the will.
You can also object the will if you sense that it was prepared under suspicious circumstances. Take for instance a situation where the person who drafted the will has awarded himself a generous share of the estate. It might be that the testator signed without full knowledge of what was contained therein.
You may rightfully suspect that the testator was unduly influenced when making the will. If you have facts on the exact culprit who wrongly influenced the testator, you can choose to contest the will in court.
Note that this is a tricky ground for contesting a will. You must have concrete evidence that such and such a person coerced the testator to distribute his wealth as he did. There should be no other way of explaining why the wealth was distributed in such a manner.
Fraudulent wills and forged wills
Fraud takes many forms. One of the sons of the deceased may prepare a will and forge the signature of the deceased. The contents will almost definitely be in favor of the fraudster. Such a will may be contested if you have concrete evidence of the forgery claims.
Rectification and construction claims
There are instances when the person drafting the will may have made errors. This may be as a result of not grasping the intentions of the testator. If you detect such errors, you may contest the will on the grounds of professional negligence.
In this sense, you may also request the court to reconstruct the will in case the words used therein are ambiguous.
With any of the above-mentioned reasons, you may now move on to the process of contesting the will. I will outline below the three basic steps you should follow. One more thing to put into consideration is the case of no-contest wills.
Steps of contesting a will
You first have to file a petition with the probate court, requesting an official testacy proceeding. You have two options here – you can either request the court to do away with an informal probate which has already been closed or request them to put a halt to a probate that is in process until you air your objections. The petition must include the objections.
After filing the petition, you have to notify all the interested parties that you have filed a petition to reopen or block the probate. You can check more details of all the persons to notify in Title 75 Section 3-403 of the Utah Legislative Code. In a nutshell, the most common persons are the spouse and children of the deceased, followed by close and distant relatives. The aim here is to inform all those persons who would have fallen heir to the estate of the deceased had he died without writing a will, the beneficiaries specified in the will and the administrator of the estate.
In addition to direct contact, the law also requires you to publish a notice in the local newspapers so that your intentions to contest the will may reach anyone with rights to the estate but whose contacts you do not have.
The court will contact you and give you the specific date and time you should appear at the court. Prepare very well beforehand so as to convince the judge that your petition is valid. It is always advisable to hire an attorney to guide you through this process. An experienced attorney has probably handled several such cases and is well equipped to put meaning into your claims. As an individual, you may not have the wording and convincing abilities required to state your case.
Some clauses in the will also require expert advice. Take for example a testator who specifies in his will that any beneficiary who contests the will and loses should receive nothing at all. This is called the no-contest clause. Some no contest clauses also specify that the beneficiary who files a petition to contest the will and loses will have to pay the attorney’s fees and all the costs for the two sides of the case. How do you go about this? Do you cower and abandon your intention to contest? This is where an attorney comes in.
It is worthwhile to note that the other party will most definitely appear in court with his attorney.
Costs to contest a will
No litigation is cheap. No litigation comes without cost implications. Be ready to spend some generous amounts on legal fees and such. What more, will contest can really drain you financially because of the number and nature of investigations required. They are generally more expensive than other forms of litigation.
Remember that the costs will greatly be determined by the court. The loser(s) of the contest may be required to pay the winner(s) the costs involved in the case.
Do not fall prey to the misconception that the costs will be covered by the estate under contest. This is not true. Be ready to foot the costs from your pocket. You will only get the payback when you win the contest.
This general rule has the following two major exceptions:
1. In case the testator or the interested persons are the cause of the contest, the costs will be funded from the estate in case the contest is lost.
2. In case the contest necessitated investigations regarding the will, the costs incurred by the two parties will be covered by those who incurred them.
The worst scenario comes when the costs involved in the contest are higher than the value of the estate. This outrightly means that you lose big. It is therefore in order to really weigh the costs versus returns before setting out to contest.
Remember the contest is not a 1 day thing, nor a 1-week or a 1 month thing. Contests normally run for up to one or one-and-a-half years. You may, therefore, incur thousands of pounds in this process.
Utah statistics have it that only about 5% of cases filed proceed to trial. The other 95% of cases end in mutual agreement by both the parties.
After the hearing of the case, the judge may rule that the will is entirely invalid or partly invalid. In such a case, the property of the deceased is distributed according to the intestacy laws. Generally, the wealth is distributed to the spouse and children. In case they are not there, the court may consider the close relatives, and finally the distant relatives.
Succeeding to contest a will is such relief. After the months of hard work, it is only good you get the portion of the estate you deserve.
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When you need legal help fighting about a will in court, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We can help you with Probate Law. Will Contests. Estate Planning. And Much More. We want to help you.
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