How to Successfully Contest a Will and Win: A Comprehensive Guide
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Is there something suspicious about a decedent’s will or trust? Do the terms of the document contradict what you had known to be the decedent’s final wishes?
When the contents of a will or trust don’t seem right, it may be worthwhile to consider contesting the will or trust. Elders are generally more susceptible than others to financial abuse and undue influence, and, as a result, may be persuaded to amend their will or trust by someone close to them who does not have their best interests at heart.
Contesting a trust or will is possible if there is proof that the document was created or changed due to misconduct, undue influence, fraud, mistake or lack of capacity.
You are probably wondering: What are the steps to contesting a will or trust? How hard is it to contest a will or trust? What if your contest is unsuccessful? Could it cause you to lose your inheritance?
Whether you are contesting a trust or contesting a will, this guide can serve as your go-to resource. If learning how to contest a will or trust is too burdensome in the wake of a loved one’s death, you might consider hiring a skilled probate attorney to walk you through the process of disputing a will or trust. An attorney specializing in wills and trusts can not only help with examining a will or trust instrument for red flags, but also with filing your desired will or trust contest.
What Are Will and Trust Contests?
Wills are created to communicate the final wishes of a decedent in regard to the distribution of their assets after their death. Trusts are generally created for the same reason, but sometimes can serve other purposes as well, such as to avoid probate or minimize estate taxes.
When a will or trust doesn’t seem to convey the true final wishes of the decedent or seems otherwise illegitimate, a will or trust contest can be brought to try to have the entire document or problematic codicils/amendments invalidated.
It is important to keep in mind that a will or trust contest can only be brought for valid reasons; not liking the terms of the will or trust or wanting a larger inheritance do not qualify. An estate and trust lawyer can help you determine whether or not your reason for contesting a will or trust is valid.
What Are the Steps to Contesting a Will or Trust?
Don’t let the process of contesting a will or trust overwhelm you, as there is help, though you should secure it promptly due to the time limits for will and trust contests. Most of the steps to contesting a will or trust can be performed by an experienced probate attorney, who can present your petition to the court in the best light possible.
Keep in mind that the court tends to presume an executed will or trust is a valid document and will generally default to upholding its terms as they are written whenever possible, since they contain the final stated wishes of the decedent. The court will only invalidate a will or trust or codicils/amendments to the will or trust if it is successfully proven that the terms of the document do not reflect the decedent’s true intent.
The following are the steps to contesting a will or trust:
- Determine whether your reason for seeking a will or trust contest is valid.
Before moving forward with the process of contesting a will or trust, it is important to ask yourself about your motive for your contest. Are you contesting the document because you think you deserve a greater inheritance, or is it because you believe foul play or lack of capacity was involved in the recent changes made to the decedent’s will or trust? If your motive falls under the latter category, you can move on to the next step. If your motive falls under the former category, your reason for bringing a contest may not be valid. Learn more about the grounds for contesting a will or trust.
- Determine whether you have standing to bring a will or trust contest.
If you think you have a legitimate reason for bringing a will or trust contest, the next step is determining whether you have standing to take this kind of legal action. Standing generally means that you have a financial stake in the outcome of the case. In other words, the will or trust you are contesting gives you less than you would otherwise get if the will or trust were invalidated. In the realm of will and trust contests, persons with standing are generally beneficiaries, heirs (i.e., surviving spouses, children, parents, etc.) and trustees or executors and administrators.
- Discuss your proposed will or trust contest with other relevant parties to determine if any of them would like to join the contest.
If misconduct was involved in the creation or execution of a trust, it is likely that you are not the only one wondering about how to contest the will or trust. Having multiple beneficiaries or heirs join your contest could strengthen your case and help with legal costs.
If a contest has been brought, and a beneficiary or heir declines to participate, they could lose their seat at the negotiating table and potentially their inheritance. Before making the decision to sit out a contest, it is important for bystander or freeloader beneficiaries, as we like to call them, to discuss their decision to not participate with a lawyer.
- Compile your evidence and seek the assistance of a trained trust and estate lawyer.
If you do not have experience working with wills and trusts, it is important to speak with a lawyer about your reasons for the proposed will or trust contest. Hopefully, by the time you speak with a trust or will contest lawyer, you will have been provided with a copy of the will or trust. If not, your lawyer can help you obtain copies.
By this step, you should also have a good idea of the evidence you have to back up your claim that the will or trust is invalid. Perhaps you are in possession of the prior version of the decedent’s will, which is drastically different from the current version. Or, perhaps someone can testify that the changes to the decedent’s will were possibly the result of undue influence, fraud or duress. The decedent’s medical records are also critical, as they may provide a helpful lens into the decedent’s capacity and state of mind at the time the will or trust was executed.
It is also important to seek a lawyer’s help to interpret the terms of the will or trust to determine whether a no-contest clause has been built into the document. While no-contest clauses can be difficult to enforce in court, there is always the possibility that you could lose your contest, and by extension, your inheritance as a result of contesting a will or trust with a no-contest clause. Just consider the example of these beneficiaries who forfeited $10 million for bringing a contest without having a valid reason for doing so. Even defending a contest should be done carefully, because even that can trigger enforcement of a no-contest clause. A trained attorney can help you evaluate the risk involved in contesting or defending a will or trust with a no-contest clause.
- Work with your lawyer to draft a petition detailing the reasons why the will or trust at issue should be voided and file that petition with the appropriate probate court.
This is the step where your lawyer will use any relevant background information, evidence or testimony you have provided to support your claim to write a petition to file with the probate court. With wills, the probate court to which your petition will be submitted is generally in the county where the decedent died. With trusts, the petition will generally be submitted to the probate court in the county where the trustee is administering the trust, also known as the “principal place of trust administration.”
- If the other parties involved are amenable, try to arrange a mediation with help from your lawyer to try to resolve the will or trust dispute prior to trial.
Will and trust contest litigation can drag on for months or even years before being resolved by the court. It can be a drain on your time and resources, so if the parties involved in a will or trust contest are open to the idea of mediation, it would be ideal to try to resolve the dispute using this approach. Mediation is essentially an informal negotiation held outside of court between the parties, their lawyers, and a neutral mediator. Most of the time, a mediation will culminate in a compromise between the parties. If a dispute cannot be resolved through mediation, it may be necessary to proceed to trial.
These are all good questions to ask in order to determine whether the time and cost of contesting a will or trust is worth it.
How hard it is to contest a will or trust will really depend on the circumstances of your case, including whether you have sufficient evidence to prove that the will or trust does not actually convey the decedent’s true testamentary intent.
Suppose that a decedent had always told their children that they would inherit the family home, but in the last days of the decedent’s life, when the decedent had been on life support and mentally incapacitated, they supposedly executed an amendment to their trust to leave the family home to a new partner. In this scenario, it may be warranted for the children to contest the trust, and it might not be too difficult for them to prove that the trust is invalid.
On the contrary, if the amendment had been executed many years prior to the decedent’s passing when the decedent had full mental capacity, it could be harder for the decedent’s children to prove that the trust was amended under suspicious circumstances.
What Happens If I Win My Will or Trust Contest?
If you win a will or trust contest, the subject will or trust will be invalidated. As a consequence of invalidating the decedent’s will or trust, the decedent’s assets may be distributed pursuant to a prior valid will or trust of the decedent, or they may pass to the decedent’s heirs in accordance with the state’s intestate succession statutes if no prior will or trust exists.
If you win a will or trust contest that ultimately benefited the estate or trust, respectively, the court will sometimes order the decedent’s estate or trust to pay your attorney fees and costs.
If you lose a will or trust contest, the decedent’s assets will be distributed in accordance with the terms of the document.