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Wiley & Mathews
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Can you challenge your parent's will?

One of the most common questions asked by clients of probate litigation attorneys is if they are able to contest a will. It's a good question to ask, as simply being dissatisfied with the provisions in a will is insufficient grounds for contesting its validity.

Then, too, not all people have the legal standing to mount a will challenge. It can be a complex matter to challenge someone's will, but first you must be on solid legal ground to even consider such a proposal.

Who can contest a will?

In order to challenge the will, you must be financially and personally affected by its provisions and terms if the court accepts the deceased individual's last will and testament.

Those who have this legal standing include:

  • Fiduciaries or beneficiaries of a prior will. These may be people or entities, as frequently people leave sums of money or tracts of land to charitable foundations or organizations. If they had previously been listed as heirs in a past will the decedent signed, but a later will either disinherited them entirely or substantially reduced their share of the estate, they could potentially challenge the later will. However, the burden would be on them to prove that the present will was somehow invalid.
  • Executors and fiduciaries named in a prior will. If the decedent executed another will later that removed them from that capacity and replaced them with others, they may have legal standing to contest the will.
  • Disinherited heirs-at-law. This category includes the close relatives of a decedent who otherwise would have inherited had the decedent died intestate, or without a will. Normally, this means a spouse or children and grandchildren (direct descendants) of the decedent. However, heirs-at-law can also include distant family members who would inherit because the decedent had no living descendants or spouse.

If you are a disinherited heir-at-law, you can contest the will. For example, if your mother had four children but left her estate to only two of your siblings, you and the other disinherited sibling might be able to challenge the will.

Again, however, success depends on your being able to prove that the decedent had unintentionally omitted you and your sibling as heirs or that the will was otherwise invalid. Wills may be invalidated if the testator was mentally incapacitated or under some kind of duress at the time the will was executed.

When a will has a no-contest clause

No-contest clauses can be included that state that any heirs who challenge the will lose the inheritance they were left. For those who were omitted from the will, this is meaningless, as you have nothing to lose.

It's important to understand that a will challenge can be expensive and the process can be lengthy. Sometimes settlements with the other heirs can be reached to avoid costly litigation.

If you think that you have grounds to mount a will challenge, learn all that you can about your legal options before deciding to take any action.

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