Estate planning is a complex area of law, and sometimes, individuals may feel that they have been treated unfairly or overlooked in a loved one’s will. If you find yourself in such a situation, it’s essential to understand the legal avenues available to you.
Grounds for Contesting a Will
There are typically three primary grounds on which you can contest a will:
Lack of Capacity: If you believe that the deceased lacked the testamentary capacity when they signed their will or trust, this could be a valid ground. For instance, if they were diagnosed with dementia or showed signs of cognitive decline, they might not have had the legal capacity to sign a will or trust.
Undue Influence: If you suspect that another individual unduly influenced the deceased, leading them to change their will or trust, this could be another ground. Telltale signs might include a family member or caregiver who had ulterior motives, perhaps wanting to keep a property for themselves. Actions like driving the elderly person to the attorney’s office or paying for their legal expenses can be red flags.
Coercion: Coercion is when someone forces or pressures the deceased into changing their will or trust. If you believe that the deceased was coerced into making changes to their estate plan, this could be a valid reason to contest.
The Process of Contesting a Will
When a will is submitted to the probate court, all interested parties must be given legal notice. This notice will have a deadline, known as a return date. If you wish to contest the will, it’s crucial to file an affidavit of objection by this date. Missing this deadline could mean waiving your rights to contest the will.
If the estate plan involves a trust, the process can be more challenging since trusts are private contracts and aren’t filed in probate court. If you’ve been disinherited or the trust doesn’t require formal accountings, you might be left in the dark. In such cases, consider filing a complaint at the probate or superior court. You might also want to seek an injunction, which requires showing that you could suffer irreparable and imminent financial harm if the court doesn’t freeze the assets.
Contesting a will is not a straightforward process. It’s essential to work with an experienced estate probate litigation attorney who can guide you through the complexities. Remember, you might only have one chance to make your case, so ensure you’re well-prepared.
For more insights into estate planning and elder law, we’d love to see you at an upcoming workshop, or check out our Elder Law Academy to learn about important legal matters from home at your own pace.