Contesting a Last Will or Testament

Contesting a Last Will or Testament - How to contest a wil

There are a number of grounds for contesting a will, such as the maker of the last will and testament was not mentally competent, but there are few successful will contests.

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Contesting a will usually arises when a potential heir has been disinherited or received a distribution that is viewed as unfair. Such grievances, however, are not per se grounds for contesting a will. There are statutory grounds for contesting a will such as the existence of a second, overriding will, the lack of mental competency of the maker of the last will and testament or that the document was not properly signed or witnessed. Will contests can be prolonged (Howard Hughes) or get ugly (Nicole Ann Smith) when a lot of money is involved. Sibling rivalry can also contribute to the negative atmosphere of a will contest.

Contesting a last will and testament is always expensive and time consuming because experienced probate attorneys are necessary. The person contesting a will (plaintiff) must have an interest in the will's distribution in order to have "standing" to contest the will. The vast majority of distributions under a will are amicable and proceed without court proceedings. But if there is animosity over the absence, or amount, of a distribution, a bitter contest over the last will and testament can ensue.

Will contests are rarely successful. There are very few ways to attack a will. You cannot assert that your father disliked you and therefore his vindictive will is invalid. There must be a concrete assertion of fact to over turn a will. Your father was not of sound mind at the time of signing the will and that he was under the undue influence of a sibling or the chauffer. There was a later, superceding will, duly executed by your father, which was stolen by the butler that you miraculously found. Probate contests make good movie plots but rarely exist or succeed in real life.

The best defense to an effort at contesting a will or last will and testament is to be careful in the will making process. A carefully prepared and executed will is the ultimate shield in probate court to a disgruntled heir or relative trying to alter your instructions about how to distribute your assets.

Contesting a will may have ulterior motives like slowing down the distribution of the estate for non-estate purposes. A brother may be willing to pay for the expense of a probate fight in order to delay distribution to a sibling. The motivation for litigation devolves into specific fact situations. Probate law may have nothing to do with it.

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