Will Contests and Estate Litigation
Sometimes the execution of a will does not go as smoothly as the deceased person and, most likely, the executor would have hoped. At times, a relative or someone close to the decedent may contest a will believing that their share of assets stipulated by the will must be wrong.
In some instances, an individual may have been disinherited altogether and may not feel the justification is valid.
In recent years, there have been many high-profile instances of family members contesting the validity of a will.
Individuals can contest a will if they believe some irregularity in the creation of the will had occurred. The process is not simple and requires the help of a qualified elder law or probate attorney to help sort through the complications and circumstances to defend your rights.
Common Grounds for Contesting a Will
Typical reasons for contesting a will are:
- Testator’s Mental Capacity
One of the challenges to a will’s validity arises from questioning the mental capability of the testator. In some cases, the will may have been drawn up and signed late in life while the individual was beginning to show signs of mental or physical weakness. Often, the individual challenging the will argues that the testator was not fully aware of the extent and type of assets or was not fully aware of how they would be divided.
- Undue Influence or Fraud
Neglected parties may claim that the testator was unduly coerced or given false information when establishing their will.
- Improper Administration of the Estate
Interested parties may claim that the executor made distribution errors. Even though the document was properly drafted and signed in the presence of two witnesses and a notary, occasions occur when the executor has disbursed the assets improperly. When contested, a court will review the original will to determine whether the assets have been mishandled and can remove the executor for gross negligence or malfeasance.
- Locating a Subsequent Will
During their lifetime, some people may have created an original will and later establish subsequent ones based on changing circumstances. While the most recent will, if valid, supersedes all previous ones, an earlier will that hasn’t been destroyed can create legal issues for the estate. An heir who was not included in the latest will, but was benefitted in a prior will might file suit claiming the earlier will actually represents the testator’s true wishes. Once a new will is executed all prior wills should be shredded.
Who Can Contest a Will?
While there are exceptions, people who most commonly contest a will are close relations like a spouse, child, or sibling. Generally, based upon their close relationship to the deceased, these people believe that they would have received more if no will had existed or if an earlier will had been in force.
How to Contest a Will
If you have reason to believe that the existing Last Will and Testament is invalid or faulty, you should contact an estate attorney to discuss your reasons for contesting. The estate lawyer will review your arguments, along with the will, and advise an appropriate course of action.
Defending a Will
Defense of a will contest represents the opposite side of the coin. In some cases, after an executor has admitted a Last Will and Testament to probate and prospective heirs have been notified, another party may contest the will. This challenge comes in the form of a Verified Complaint that seeks to nullify the existing document. The executor should contact the lawyer who drafted the will to serve as a witness to the validity of the will.
Another attorney will be required to defend the challenge to the will.
Legal Support in New Jersey for Contesting or Defending a Will
Whether you are drafting, contesting or defending a will, Nicholas A. Giuditta III Law Firm of Westfield NJ offers thirty years of elder law and estate planning experience.