A Legal Guide to Contesting a Will
It’s never an easy time when a loved one passes. Emotions are raw, and someone’s death can often bring great strain to relationships. Then there is the question of assets. What happens to the departed’s money and property? Who gets what? Who has a right to what?
That’s where the will comes in. A sound will can settle all of these questions ahead of time and bring great comfort to survivors.
But there are also times when not everyone feels satisfied. That’s why it’s essential to understand what a will is and what is involved in contesting a will.
What Is a Will?
A last will and testament—commonly referred to simply as a will—is the legal document a person writes to express their final fishes in how they would like their assets to be distributed after death. The person who writes the will is often called the testator or the deceased once they’ve passed on.
Who Needs a Will?
The most straightforward answer is that you need a will if you own any assets and have people you care about. In many cases, this would describe someone who is married, has children, or other family. Even though many of these could inherit without a will—such as a wife or children if the wife is predeceased, a will makes sure nothing is left to chance.
Without a will, inheritance usually goes to, in order, the surviving spouse, domestic partner, and children. If none of these exist, surviving parents and siblings tend to follow.
Contesting A Will
As unpleasant as it is, sometimes not everyone is happy with how a will turns out. Some people may feel they were unfairly treated or represented. They may feel there are problems with the will’s validity.
Whatever the case, contesting a will is an option some may wish to explore.
What Are the Time Frames For Contesting a Will?
Once the testator is deceased and death is confirmed, the will can be placed into probate. This is when assets are appraised, the estate’s claims are sorted, and relatives and beneficiaries are notified. The probate process can take anywhere from six months to well over a year, depending on what assets need to be administered. Ohio has a tight time frame to contest a will. 3 months from the date a certificate of notice is filed with the probate court. Therefore, time is of the essence in taking action.
For contesting a will, you must file your challenge within two years from the date that authorities place the will into probate. When probate begins, so does the period in which one can make a challenge.
Assuming all parties are on good terms and all properties or assets in place are not taxable, the probate hearings should take less than a year. However, challenges and any unforeseen complications with taxes or investments might extend the hearings over a year.
What Grounds Are Needed For Contesting a Will?
Contesting a will isn’t necessarily easy—nor should it be. However, if you’re the one leaving the will, you want to feel secure in the knowledge that your final wishes are being carried out.
That said, there do come times when a will does not truly represent the testator’s actual intentions. When that happens, contesting a will to render it invalid, either in whole or part, is the best thing to do.
Here are common reasons for contesting a will:
- Testator’s incompetency: Evidence that the testator was incompetent at times when the will was being either created or updated.
- The testator was unduly influenced or coerced: These are situations in which someone may have exerted pressure on the testator to write or change a will in their favor. It could be a caretaker, personal attorney, or even a relative. Coercion could have been in the form of physical violence or even nonphysical intimidation. The challenge is in proving it. You’ll need to provide solid evidence and witnesses to back your claim.
- There is evidence of fraud or forgery and fraud: You could also contest a will on the grounds of fraud. As with undue influence or coercion, you’d have to provide evidence. With forgery, you’d need to be able to show the signatures were invalid or that the will was changed after the fact. This can be difficult if you don’t have copies of the original will or access to the testator’s records with signatures. Fraud can be even more tricky as the deceased cannot confirm or deny a fraudulent intent in the will.
- You believe the asset distribution is unfair: As a legal heir, you may be able to challenge a will based on unfair asset distribution. For example, you may think you have been mistakenly excluded from the will or that you are entitled to more of the estate than what the will states. In such situations, you may be able to build a solid argument for a fair share of the assets.
- The will does not follow state laws: Laws vary from state to state, and some differences can be subtle. Just the same, state laws are particular regarding what qualifies as a valid will and testament. For instance, some states require two witnesses to sign in the writer of the will’s presence. And the testator’s signature must appear at the very end. Anything otherwise could be grounds to invalidate it. When either writing or contesting a will, it’s a good idea to contact a qualified lawyer to review the specifics of state law. Failure to adhere to even small details could be successful grounds for a contest.
- The status of the will is not clear: For a will to be valid, the document must clearly indicate that the testator meant for the will to be their last will and testament. Failing that, it could be argued that the deceased did not truly intend for the document to be their final will. Any reasonable doubt to a will’s validity can serve as grounds for contesting a will.
How Good Are the Chances For Contesting a Will?
The odds of successfully contesting a will are on the small side. Generally, less than 4% of wills undergo contests—and most of those are unsuccessful. With that in mind, you shouldn’t consider contesting unless you feel you have valid grounds.
However, if you believe you have solid reasons or evidence for challenging a final will and testament, you must consult with an experienced estate attorney to determine how realistic your chances are.
And you should be aware that, on occasion, some wills contain a no-contest clause. This means that someone who contests a will and fails may end up completely disinherited.
You want to be certain of how you stand.
Do Family Members Contest Wills?
It happens more often than one might think.
Probate laws state pretty clearly that only certain parties may contest a will. They include the following:
- Heirs: This includes spouses, children, parents, siblings, grandchildren, cousins, aunts, uncles, and other extended family members. Conflicts can arise in cases when someone has been estranged, gone through a divorce, formerly disowned, involving a child out of wedlock—to name a few. Contesting the will would still need to have valid reasoning, regardless.
- Named beneficiaries: If the deceased included other beneficiaries in their last will and testament, they or their representatives could also make a claim—particularly if earlier versions of the will list them as a beneficiary but then removes them in a later version.
Things can get very stressful when a close relative, such as an offspring or a sibling, challenges a will. Personal feelings get involved, and emotions run hot. It would help if you were prepared for much pushback in situations like this and possibly irreparable damage to your family relationships.
Only move forward if you are prepared for the emotional costs on top of the financial ones. You may wish to consider arbitration as an alternative to contesting.
Can an Executor Be Contested?
If you feel the individual tasked with managing the estate is problematic, you can file a challenge on that as well. In fact, if you think the person executing the will is corrupt, incompetent, or could otherwise harm the process, you have a legal right to speak up. It’s essential for all parties involved to trust the executor.
Ways an executor may show they are not the best person to be in charge of the will include misuse of funds, failure to carry out duties or court orders, not following instructions set in the will, or attempts to close the estate and distribute assets without the court’s permission.
As with contesting the will itself, you must be prepared to give evidence and testimony to support your claim.
What Happens If You Contest a Will and Lose?
There are a couple of things to keep in mind when weighing the risks. First, if you lose a challenge with a no-contest clause in place, you could lose your inheritance. Second, you would lose the time and money invested in filing the challenge. Finally, the estate itself could lose value in the process of responding to your challenge.
These are real risks, and, as mentioned earlier, the chances of success can be slim. In many cases, you may find a better path through arbitration and settlement. This saves on court costs, extensive lawyer fees, and other expenses. You may not receive everything you hoped for, but it can be better than walking away with nothing.
If you’re not sure of your options, consider getting advice from an experienced will contest lawyer.
What About Trusts? Can Those Be Contested?
Trusts are similar to wills in that they outline the distribution of assets to loved ones and other beneficiaries. Among the key differences is that they do not have to wait for probate to be enacted or even the testator’s passing.
The testator does not control the trust, but control of those assets is turned over to a third party for management. Thus, a trust can be contested for many of the same reasons a will could be and have the same chances for failure.
A qualified attorney will be able to help you explore this option.
Consult With the Experts
Contesting a will is a challenge to a deceased’s final wishes. Courts usually operate under the assumption that everything in the will is valid unless interested parties claim otherwise. This process overall can be expensive and uncertain. Therefore, you need clear grounds to assess whether you have a fighting chance to contest a will.
However, should you win, you will receive the claimed benefits—be it money, property, or both. To make sure you win the will contest, you need a skilled probate lawyer to assess your realistic chances.
The experienced attorneys at Heban, Murphree & Lewandowski, LLC are standing by, ready to answer your questions and guide you through the process from beginning to end. Contact us now for a free case evaluation, or give us a call at (419) 662-3100 to discuss your legal options!
- How to Contest a Will
- How to Contest a Trust
- How to Contest an Executor of a Will
- How Children Can Contest a Will
- How Nieces/Nephews Can Contest a Will
- How Does Ohio Probate Court Work?
- What Questions Should I Ask A Probate Lawyer?
- What Happens To Property If There is No Will?
- What Are The Best Reasons to Contest a Will?
- What Is a ‘No-Contest’ Clause?