Legal Grounds for Contesting a Will

When a loved one dies with a well thought-out will, we think it should be easy to handle the estate. The will lays out who is to receive the person's property and which person (called the executor (or the personal representative in Florida)) will be in charge. But sometimes, beneficiaries can feel slighted by what they did or didn't receive, and some individuals are entirely excluded from inheriting anything at all. The legal process of challenging the validity of a will is called a will contest (contesting the will).

The Likelihood of a Will Contest

Once probate is underway, the named executor will take the necessary steps to complete probate and notify beneficiaries named in the will. Because anyone not named in the will likely does not get notified, they are on their own to stay aware of probate filings. But once the clock starts when probate begins, this limits the time when a beneficiary (or anyone else) can contest the validity of the will. Thus, the window of time during which a will contest may be brought can be short.

As for going against what the deceased put in her will, the courts rightly view the will like the author's (testator's) last voice. Because the testator can no longer speak about her wishes, the courts try to adhere to the terms in the will. This greatly stacks the odds against winning legal challenges over the will's terms. Thus, most challengers will find it a fruitless and costly endeavor.

Reasons for Contesting a Will

Under what circumstances then would you want to contest a will? 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, this means an heir or beneficiary already named in the decedent's last will or any preceding will. It may also include any person (usually a spouse or child) not named in the will, but because of state intestacy laws is someone who would be eligible to inherit in the absence of a will.

Typically, four grounds are viable for contesting a will:

• The will's signing lacked the proper legal formalities.
• The mental capacity of the decedent to make a will is in question.
• Someone leveraged undue influence over the decedent into making or changing a will.
• The will's procurement is fraudulent.

Certain fact patterns may lead to a successful will contest. As an example, if a testator writes his own will, some legal formalities may be overlooked, rendering the will invalid. In particular, the "do it yourself" method for creating a will may not include all of the what if scenarios making the will incomplete. In another example, if the testator is experiencing isolation from family and friends, the primary beneficiary's influence and motives regarding the estate may come into question. If the executor is trying to enforce an outdated will, the newer one should supersede the older one as long as no coercion was involved in writing the most recent version. Finally, some medical evidence may suggest the testator lacked the requisite mental ability to make a will. Occasionally the challenger to an existing will can negotiate a settlement with the estate instead of enduring a court proceeding.

Preventing a Will Contest

Some wills include a no-contest clause, also called an in terrorem clause. This provision states that if anyone files a lawsuit challenging the will's validity, they will receive nothing from the estate. While this may be a powerful deterrent, it may not be enforceable in the state where the will is probated. For example, these are allowed to be enforced in Texas but not in Florida.

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 attorney can help protect you and your estate from future legal challenges while helping you think through whom you want to inherit your money and property and how each person should receive what they inherit.

If you would like to discuss whether a will is appropriate for you or whether you should update an existing will, I would be happy to speak to you. Please contact McCreary Law Office or call the Jacksonville, FL office at 904-425-9046 or the Houston, TX office at 713-568-8600.