Contesting a Will or Trust

A Will or Trust contest can derail final wishes, rapidly deplete estates, and tear loved ones apart. So let’s talk about it.

What is a Will or Trust Contest?
A Will or Trust contest is a type of lawsuit that is filed to object to the validity of a Will or Trust.
Usually, if a Will or Trust is successfully contested (i.e., declared invalid), then the court “throws out” the Will or Trust. If there is a previous Will or Trust, then those terms will control. If there are no other estate planning documents, the state’s laws of intestacy will control. This can be a disastrous outcome for your intended beneficiaries.

Who Can Contest a Will or Trust?
Only a person who has legal “standing” can file a lawsuit. Standing means that a party involved in a lawsuit will be personally affected by the outcome of the case.

The following people have standing to question the validity of a Will or Trust:

     ● Disinherited or disadvantaged heirs at law – family members who would inherit or would inherit more under applicable state law if the deceased person failed to make a valid Will or Trust.
     ● Disinherited or disadvantaged beneficiaries – beneficiaries (such as family, friends, and charities) named or given a larger bequest in a prior Will or Trust.

What Are the Legal Grounds for Contesting a Will or Trust?
In general, there are four grounds to challenge the validity of a Will or Trust:
     1. The Will or Trust not signed as required by state law. Each state has specific laws that dictate how a Will or Trust must be signed in order for it to be legally valid.
     2. The person making the Will or Trust lacked the necessary capacity. The capacity to make a Will means that the person understands (a) their assets, (b) their family relationships, and (c) the legal effect of signing a will. 
     3. The person making the Will or Trust was unduly influenced into signing it. As people age and become weaker both physically and mentally, others may exert influence over decisions, including how to plan their estate. Undue influence can also be exerted on the young and the not so young. In the context of a Will or Trust contest, undue influence means more than just nagging or verbal threats. It must be so extreme that it causes you to give in and change your estate plan to favor the undue influencer.
     4. The Will or Trust was procured by fraud. A Will or Trust that is signed by someone who thinks they are signing some other type of document or a document with different provisions is one that is procured by fraud.

Planning Tip: While it is easy to assume that a Will or Trust signed in an attorney’s office is valid, this is not always the case. Attorneys who do not specialize in estate planning may be unfamiliar with the formalities required to make a Will or Trust legally valid in their state. Therefore, it is important for you to work with an attorney who is familiar with the estate planning laws of your state. Ensuring that an estate plan is protected against these legal grounds is particularly important if you wish to disinherit or favor one part of your family.

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