How to Challenge a Will

If you think the will challenge a will be , you must file a petition in probate court within the statute of limitations. The next steps depend on the state, the parties and legal teams involved, and whether a settlement is reached or the case is ultimately decided by a judge. Probate attorney Judith Davidson says she generally recommends that people who want to challenge the will consult an experienced attorney, as it is challenging to successfully bring a challenge. Typically, she says, these cases involve substantial legal fees and can fray relationships between family members.

The first thing to determine is who has standing to challenge the will. That usually means a named beneficiary or someone who, under the state’s laws of intestacy (the process by which an estate is distributed without a will), would inherit if no will had existed. The latter generally includes spouses, children, parents and siblings, but can also include friends, faith communities, charities and universities.

Is it Possible to Challenge a Will? Exploring the Legal Options for Contesting a Testamentary Document

In addition to legal standing, a person bringing a challenge must have legal grounds – reasons based in law that the will should not be admitted to probate. Typical grounds include improper execution, lack of testamentary capacity and undue influence.

The proof required to support each of these claims depends on the facts of each case. For example, to make a claim that a testator did not have the mental capacity to understand what was being written in their will, medical records and an expert’s opinion are often required. To claim that a testator was the victim of undue influence, a thorough investigation into the deceased’s relationship with the beneficiary, their motivation and the circumstances around the will is required.

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