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Understanding Last Will and Testament: An Overview

A person’s will outlines who will inherit their property upon their death and who will handle the estate settlement (an executor or personal representative). For many reasons, beneficiaries can feel slighted by what they did or did not receive, especially in instances where an individual is entirely excluded from inheriting anything at all. The legal process of challenging the validity of a will is called a will contest.

The Probate Process

Once probate is underway, the named executor will take the necessary steps to complete probate and notify the beneficiaries named in the will. This legal notice limits the time when a beneficiary can contest the will’s validity.

The vast majority of wills pass through probate without issue. The courts rightly view the will as the testator’s last expression of their wishes. As the testator is no longer able express their wishes, the courts try to adhere stringently to the legally filed will. Considering the narrow timeline for filing a will contest and the odds of winning the legal challenge, contesting a will is usually a fruitless and costly endeavor. Also, there are often times provisions in the will that deter would-be contestants from challenging the will as it could cost them their inheritance if they do not prevail.

Circumstances that Can Lead to a Will Contest

Legally, only a person or entity with “standing” can contest a will. Standing is when the party involved in the will contest will be personally affected by the case’s outcome. Most often, it is an heir or beneficiary already named in the will or preceding will. It may also include any person (usually a spouse or child) not named in the will but, because of state intestacy laws, would be eligible to inherit if there was no will. Four viable grounds for contesting a will include:

  • The will was not signed with the proper legal formalities.
  • The mental capacity of the decedent to make a will is in question.
  • Someone leveraged undue influence over the decedent to make or change a will.
  • The will’s procurement was fraudulent.

Examples of How Wills Can Go Wrong

The following are examples of circumstances that could lead to a will being declared invalid, or a will contest:

  1. If a testator writes their own will, legal formalities may be overlooked, rendering the will invalid, such as in proper execution. Substantively, do-it-yourself wills may not include all the “what if” scenarios and contingencies thereby rendering the will incomplete.
  2. An heir-at-law or beneficiary may come across some medical evidence suggesting the testator lacked the mental ability to make a will at the time it was executed.
  3. When the testator is experiencing isolation from family and friends, the influence and motives of the primary beneficiary named under the will may come into question.
  4. If the executor is trying to enforce an outdated will, the newer one should supersede the older one unless coercion was involved in writing the most recent version.

The Outcome of a Will Contest

Occasionally the challenger to an existing will can negotiate a settlement with the estate instead of enduring a court proceeding. However, some wills include a no-contest clause, also called an “in terrorem” clause. This provision states that anyone who files a lawsuit challenging the will’s validity will receive nothing from the estate. While this may be a powerful deterrent, it may not be allowed in the state where the will is probated.

To protect your will from being contested, even if you have limited assets, your best strategy is to have your will professionally drafted by an attorney well-versed in estate planning. Using an estate planning attorney can help protect you and your estate from future legal challenges. They also help you think through who you want to inherit your money and property and how each person should receive what they inherit, while taking the proper precautions to best ensure your wishes are upheld.

If you would like to discuss creating a will or whether you should update an existing will, we would be happy to speak to you at your convenience. Contact our office at 1 (800) 680-1717 and schedule a consultation to discuss your legal matters. We look forward to the opportunity to work with you.

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