This article is reprinted by permission from NextAvenue.org.
Being disinherited or left out of a will is the last thing you want to discover in the wake of losing a loved one. Although it can be very hurtful to not be included, the fact that a person is disinherited does not necessarily indicate foul play.
However, in the event that you believe something improper or illegal was done relating to the will, there are steps you can take to remedy the situation.
Here are some common reasons for challenging a will, what to do if you believe your omission from a will is suspicious or invalid, and how an estate attorney can help you contest a will.
Common reasons for challenging a will
A testator is a person who has made and executed a will. Generally speaking, a testator can leave their assets to any individuals or entities the testator chooses. There are numerous reasons why you may have been left out of a testator’s will, many of which are legal and permissible.
However, there are situations that affect the validity of the will, and a challenge may be appropriate. Conditions that may lead to a will contest include the following:
The testator lacked the proper capacity required at the time of the will’s creation. The law presumes that all testators were of sound mind and had the mental capacity required to create a will. So, the heavy burden to show that the testator lacked this capacity is your responsibility. This can be difficult to prove and requires substantial evidence of incapacity at the time the document was signed.
The testator was subjected to undue influence. Undue influence has taken place when a person is persuaded to act contrary to their own free will and, as a result, includes provisions in their will that the person would not have otherwise included.
If you believe an “influencer” is at play here, you must prove that the person doing the influencing was in a position of authority over the testator and that the influencer used control or manipulation tactics to reign control over the testator (such as medication control, isolation, etc.).
The will was obtained by forgery, fraud, etc. Unfortunately, ill intent is not outside of the realm of possibilities when it comes to the forgery or fraudulent execution of a will. This commonly occurs when an interested party or individual would like to stake a better share of the testator’s estate than they would have otherwise received.
You provided goods or services to the testator that remain unpaid. This typically results in a claim against the state rather than a will challenge.
The will does not meet formal requirements. Most states have statutory requirements for a will to be deemed valid on its face, such as disinterested witnesses and notarization. Although the lack of witnesses or a notary may be used as evidence in challenging a will, it does not necessarily mean that the document will be deemed invalid.
How an estate attorney can help you
Contesting a will is a complex and fact-driven matter, and can be complicated by emotions, grief, and family dynamics. Consulting an estate attorney is crucial to help you determine whether the contest is worth your time, money, and energy or if it is a better decision to walk away.
For example, a will may include a “no contest clause,” which may result in a beneficiary losing out on their inheritance entirely if they choose to challenge the will without sufficient cause. An estate attorney can help you weigh these risks against the potential reward.
If the legal grounds for contesting are sufficient, an estate attorney will file a contest to the will and/or seek other judicial remedies in order to achieve your objectives.
One avenue an estate attorney may recommend is mediation. Mediation can help you avoid the uncertainty of a court trial, reduce overall legal costs, and help you reach a quicker resolution. Often, a court will order the parties to mediation before having a trial. A mediator’s role is to facilitate an agreement where you and the proponent of the testator’s will reach a resolution outside of court.
Reaching a positive outcome
Deciding whether or not to contest a will can be a difficult decision. It is certainly not always clear-cut, and many different factors must be taken into account.
Although it can be emotionally and financially taxing, sometimes it is absolutely necessary to ensure the testator’s true wishes are upheld. Still, the most logical and practical approach to a will contest is to effectively reach a solution and resolution without subsuming any financial reward with legal fees and emotional strain.
It can save you a lot of unwanted stress, money, and time if you work directly with an estate attorney, whose main goal is also to help you reach the best possible outcome based on your specific circumstances.
The author is a licensed attorney in the state of Colorado. The information contained in this article is not, nor is it intended to be, legal advice.
Brooke W. Brestel is a founding partner at Brestel Bucar, Ltd. in Broomfield, Colo. Her work is focused on elder law, specifically estate planning, guardianships and conservatorships.
This article is reprinted by permission from NextAvenue.org, © 2022 Twin Cities Public Television, Inc. All rights reserved.
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