Contesting a Will

Contesting a WillIn the US, every will has to be subjected to a probate process upon the death of its testator before its provisions can be implemented. The purpose of the probate process is to establish the legality and validity of the will. It is also during this stage that the will and its provisions can be contested.

According to data on the subject, it is estimated that most wills go through the probate process without much difficulty. In fact, only less than 2% of wills fail to pass the process. However, there is always the chance that someone might decide to contest a will if they meet some criteria or the will fails to meet some requirements.

So how can you contest a will?

Preliminaries

The laws in every state in the US require that anyone contesting a will has to have legal standing. In general, you can only contest a will if you fit into any of the following groups:

  • You are a devisee of the will

  • You have been named as a beneficiary in the will.

  • You are not a beneficiary but would have stood to benefit if the testator of the will had died intestate (without a will)

Generally speaking, the spouses, children, grandchildren or even siblings of the deceased can find standing for contesting a will if it was not legally constituted. But there is a catch- if you are a beneficiary in the will that you are contesting then you forfeit all bequests made to you in the will. You might also be subjected to additional penalties if your efforts prove futile.

Only the state of Michigan makes an exception to this law. According to Michigan law, the ‘no contest’ provision will not be given effect if the person contesting the will has both legal standing and probable cause.

Grounds for Contesting a Will

Mental incapacitation

The testator must have been of sound mind at the signing of the will for that will to be legally valid. The court will generally try to establish whether here or she

  • Knew the will was being written

  • Knew who should benefit from the will

  • Knew the estate being distributed

Undue influence or fraud

If someone in a position of trust manipulated the testator into including them in the will, then the will can be contested on grounds of undue influence. Forged documents can also be construed as fraud and lead to the nullification of the will.

Witnesses

Most states require that the will be signed in the presence of at least two witnesses. If the witnesses are also beneficiaries in the will, then their inheritance will be voided, but the rest of the will shall remain sound.

Age

In all the US, anyone writing a will must have attained 18 years of age for the will to be legally valid. However, a handful of states have some additions to this requirement which may allow people below 18 years of age to create wills if they are ’emancipated.’ For instance, younger people can still create wills if they are married or if they are part of the military.

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