Contested Last Wills: What Is the Process

The purpose of a will is to distribute a person's assets, according to their wishes, upon their death. But what if you feel a last will doesn't accurately reflect the wishes of the deceased? In this situation, you'll need to contest the document. Contested wills involve a complex legal process, and you should go into it armed with an understanding of the associated steps and requirements.

The first step in contesting a will is to determine that you have the legal standing to do so. A contester must be either a named beneficiary in the will or must stand to inherit if the existing will was declared invalid. So, if the will in question is your beloved great aunt's, and you just can't believe she'd forget you completely and leave everything to her ungrateful children, unfortunately you haven't got the standing to contest.

It's important also to ensure that you are contesting the will based on valid grounds. Most wills are contested based on one of two assertions: lack of capacity or undue influence. A lack of capacity assertion claims that the deceased lacked the mental capacity to understand what he or she was doing when the will was written. An undue influence claim asserts either that fraud was committed in the execution of the will or that involved parties manipulated the deceased into changing the terms of the will in their favor.

A third grounds for contest involves legal loopholes: if the will wasn't signed or if there weren't the proper number of witnesses to the signing as required by state law, you may be able to contest the will without undue influence or lack of capacity evidence.

Once you're sure you have the legal right to contest, you'll need to hire some legal representation. Contesting a will is a form of a lawsuit and will be heard in probate court. You'll need to gather evidence that supports your claim. This can be in the form of witnesses or documentary evidence.

Prior to your actual hearing, witnesses will give a deposition, which is like an interview under oath, with all parties present. Both sides will have the chance to review the opposing sides' evidence. During this period, either party may try to initiate mediation, in which both sides attempt to settle the matter before proceeding to a formal trial.

If the case proceeds to a formal trial, a judge will hear all evidence and rule to uphold the will, either whole or in part, or declare it invalid. If you contest the will successfully and it is invalidated, then the property in question will be treated as if there were no will and fall under intestacy law. Generally, under intestacy law, property will be awarded first to a spouse, then to children and on down the line. It's important to check your local or state intestacy laws, as the line of inheritance will vary between jurisdictions.

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