A will is “contested” when someone challenges the will's validity in court. Usually a challenge is made by a person who thinks he or she did not receive a large enough inheritance under a will. There are several grounds for contesting a will, including:
• The maker did not have the legal capacity to make the will. For example, he or she was mentally incompetent when the will was made.
• The will was not made according to the law. There are specific legal rules for making wills, including how they must be witnessed and signed. If the rules are not followed, a will may be invalidated.
• Someone exerted undue influence on the maker. For example, a maker who was ill was pressured by a caregiver to put him or her in the will, or a person threatened to harm the maker unless given a bequest.
• Someone committed fraud. For example, a person altered the will.
If your will is successfully challenged, a court may throw out part or all of it. Your property would then be distributed according to a prior will (if you made one) or to state laws for people who die without a will.
Reducing The Chance of A Contest
There are ways to reduce the risk of will contests. They include:
• Be sure your will is made according to the law. Following all legal requirements for making a will makes it much harder for a challenge to succeed. To prove that you are "of sound mind" to make a will, you can obtain a letter from your doctor certifying that you are legally competent to make a will.
To make sure your will is made with the right number of witnesses and is signed properly, have your will prepared by a lawyer. Also, choose reliable people who could serve not only as witnesses to the making of your will but also would likely be available if needed to testify at a trial if your will was contested.
• Don't pass major assets under your will. If you think someone will contest your will, consider other ways to transfer your property. One good way to transfer property outside a will is with a trust, which is usually much harder to challenge than a will.
Passing major assets outside your will also helps reduce the chance of a contest because there will be less property passing under your will, which makes it less attractive for someone to challenge.
• Include a “no contest” clause in your will. This says that if a beneficiary contests your will, the gift is voided. It forces the person to take what he or she gets under the will, or to risk it all by making a contest. The enforceability of no contest clauses varies from state to state, so it’s important to seek legal help when preparing your will to increase the chances a judge will enforce the clause. Some states refuse altogether to enforce these clauses because they believe it is unfair to prevent a valid claim. But just the presence of a "no contest" clause can deter someone from challenging a will.
Will contests can be expensive to your estate and also lengthen the time it takes for your rightful heirs to receive property. By taking the proper steps in advance, you can help reduce the chance of someone contesting your will, which results in your heirs receiving the property you want them to get faster and with less expense.
Contact an attorney at DeMarco & Triscaro today. Please call us for all your legal needs. We offer a full range of legal services to individuals, families and businesses, including personal injury, estate planning, real estate, family law and business matters. We are dedicated to providing the highest quality legal services at a reasonable cost. |
