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Those who have an estate of any size are usually advised by a qualified financial planner to create a will. Creating a proper will ensures that when someone dies, his or her assets will be distributed in the intended manner. There are some cases where assets would be excluded from a will, including real estate that is jointly owned, Individual Retirement Accounts (IRAs) or life insurance policies. The reasons for these exclusions are typically that the law provides for these assets to go to the co-owner in the case of real estate and to the named beneficiaries in the case of IRAs or life insurance. When planning an estate, it can be the case that a minor is named beneficiary. In the event that either the retirement account or the life insurance policy did not have a contingent beneficiary and the beneficiary pre-deceased the owner, these accounts would then become part of the owner’s estate and be subject to probate.
Outside of these investments, having a will can help insure that the creator’s estate is handled in the manner that they intended. Properly executed and valid wills can help avoid confusion and they can often stop disputes between family members. Although someone may have a will, they are not obligated to leave any property or assets to any person. Family members are not automatically entitled to receive assets of a father, mother or husband if they are not named in the will. This is typically where problems occur; family members who are excluded from a will may consider contesting the will. While it is possible for a family member or loved one to contest a will, there are specific conditions that must exist if doing so will be successful.
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Conditions For Dispute
In order for someone to successfully contest a will, certain conditions must be proven. Those who have an interest in the estate of a loved one will have to meet the legal grounds for contesting a will before deciding on this undertaking. Even when a family member feels they have been short-changed in a will, the only way to be successful with a dispute is in the case of an invalid will. What separates a valid will from an invalid will? Here are the typical scenarios that a will may be unenforceable:
Mental incapacity -The complaint that a family member or loved one was not in their normal mental state is sometimes used to contest a will. In order for this dispute to be valid, there must be a method of determining the mental state of the descendant. Mental incapacity disputes are generally filed when a decedent has been sick for an extended period and their will was changed during that time;
Fraudulent will or signing under duress - When a will is signed by a descedent, general legal practices warrant a phrase to the effect that the will was created of the testators own free will. When there is a suspicion that the decedent may have been coerced into signing a new will or that a new will was presented to them with other legal documents, there may be grounds for fraud or duress;
Validity in question - There may be reasons to consider whether a valid will exists if there are a lack of witnesses or if there are other copies of a will that have later dates than the will that is in probate. Disputing the content of a will under these circumstances will require being able to prove that the will was written after the date of the one that is in probate or proving that the will does not have valid witness signatures.
The primary reason that wills are so difficult to contest is that the law requires that the wishes of the decedent be upheld at all times. Today, more people are electing to use not only a standard will, but many are using living wills and trust agreements to ensure that their wishes are carried out after their death. Those who are considering contesting a will will require legal assistance to prove their case.
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- Avvo - Constant, George C.; Grounds for contesting a will http://www.avvo.com/legal-guides/ugc/grounds-for-contesting-a-will-1
- HG Legal Directories, Gormerly Prince, PC, Patricia How to Contest a Will or Trust http://www.hg.org/article.asp?id=6706