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How To Defend The Contesting Of A Will



The majority of will contests are brought by beneficiaries or potential heirs under the will who are disappointed with what they receive (or do not receive) under the provisions of the will. Will contests must be filed with the probate court in a requisite number of days after the challenging party receives notice of the death of the decedent or notice of the petition to have the will admitted to probate.

Commonly-Used Grounds for Will Contests

A party contesting a will must have legal cause for raising his or her objection to the will. Objections often raised to wills in contest suits include the following:

  • Will was improperly prepared, executed or witnessed and fails to meet state statutory requirements;
  • Decedent did not have sufficient mental capacity to execute the will;
  • Fraud, undue influence or some form of force was used against the decedent at the time of the will's execution; and/or
  • Will was forged.

The stakes of will contests are high. If the will or any portion thereof is found to be invalid pursuant to a successful will challenge, then the probate court will likely invalidate the entire will or the provisions challenged, at a minimum. If the entire will is invalidated, then the laws of intestate succession apply.

Defending a Will Contest

An ounce of prevention: hiring an estate planning attorney upfront - If a testator even thinks there is a remote possibility of a will contest emerging over his or her will and estate plan, the testator would be prudent to consult with an estate planning or probate lawyer to prepare or review the will and estate plan documents. Having an attorney involved early in the estate planning process, rather than simply after the fact in will contest litigation mode, may mean that the attorney can prevent or at least mitigate the circumstances surrounding any probable will contest.

Retaining a doctor to evaluate mental competency - The probate attorney can hire a doctor to evaluate the testator's mental capacity at the time that the testator is executing the will. That same doctor can serve as a witness to the execution of the will. The attorney can also videotape the testator's execution of the will.

Will provisions can punish unsuccessful will challengers - The probate attorney can also suggest including provisions in the will that state that any challenger of the will who is unsuccessful in his/her challenge will forfeit any gifts under the will. An attorney can additionally serve a mediator role between interested parties and/or potential heirs in trying to resolve differences and possible disputes over estate property before the will is finalized, executed and any will contest may arise.

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