Family Fight? Maybe or Maybe Not

Imagine losing someone you love. You are distraught. You are grieving. You are numb. You try your best to get through the burial arrangements, the many sympathetic funeral goers, the well-wishers, those who "stop by" to bring food. When deep down inside, they know you are not hungry and you know you are not hungry. But you put on your best face and press forward under the pretense of eating to keep up your energy.  Then imagine after the dust settles, you have to go through and sort out the estate. You know there's a will, you know it has to be probated and now is the time to settle the estate.

At best, you figured this should be easy. There's a will that's clear on your loved one's intentions at death. All you have to do is get an attorney and get everything filed. Then, low and behold, out of nowhere, a relative decides that he wants a piece of the action. Even though he was not mentioned in the will, and has no right to anything in your loved one's estate, your relative has decided that he belongs in the will. He retains an attorney and challenges the will. In legal circles, we refer to this as a contested will. 

Contested wills refer to the legal disputes over the validity of a will, the distribution of assets according to the will, or the appointment of the executor named in the will. A will can be challenged or labeled contested for a number of reasons, including:​

1. Lack of testamentary capacity: The person making the will (the testator) must have the mental capacity to understand the nature and effect of their actions when making a will.
2. Undue influence: If someone exercises excessive control or pressure over the testator, the will may be invalidated.
3. Fraud: A will may be considered invalid if it can be proved that it was procured by fraud, forgery or other deceptive means.
4. Revocation: A will can be revoked if the testator intentionally cancels, alters, or destroys it.
5. Formal requirements: Wills must meet certain formal requirements in order to be valid, such as being in writing and signed by the testator in front of witnesses.

Contested wills are resolved through the probate court process, where a judge hears evidence and makes a decision on the validity of the will. The process can be complex, time-consuming and emotionally charged. Some believe that if they only talk to the family member that the matter can be resolved without the need and expense of getting attorneys involved. However, keep in mind that communicating through an attorney reduces and deescalates a charged and emotional situation. So it's advisable to seek the assistance of an experienced attorney if you are involved in a contested will case. 

If you have any questions about contested wills or other probate matters, contact us for more information.