How to Challenge a Will or Trust

Wills and trusts are meant to be an efficient means for a loved one to pass along inheritances and properties to their family and close friends when they pass away. But what happens if you, someone who would have reasonably been named a beneficiary or devisee by most standards, are not named in a will or trust at all? Is there something you can do to speak up and set things right?

In most states, you have the legal right to challenge a will or a trust under two conditions: you should have been named under reasonable terms, as in you are a close relative to the decedent, and if you have "evidence of impropriety" regarding the will or trust. Figuring out if you have legal standing can be fairly simple, and you may even challenge a will if you think the estate administrator is failing to uphold their fiduciary duties, but what is impropriety and how do you get evidence of it? Without using too many legal definitions, impropriety is the failure to follow given standards or act with honesty, and if it is present in a will or trust, the whole thing could be jeopardized.

There are five ways impropriety can be used to unduly influence a will or trust:

  1. Lack of capacity: If the testator, or creator, of a will or trust could not have been mentally sound at the time of the document's signing due to illness or memory problems, they are considered to have a lack of capacity.
  2. Undue influence: When someone who is invested in the outcome of a will or trust exerts pressure, raises threats, or otherwise attempts to considerably manipulate the testator, you may claim that undue influence has occurred.
  3. Fraud: While it may be uncommon, it is not impossible for a will or trust in question to be completely fraudulent, created and signed by someone other than the proper testator.
  4. Updated version: There are situations when a will is being reviewed in probate and it is discovered that it is not the most recent version. Any decisions regarding the estate must only be made with the updated version that has been dated most recently.
  5. No witness or signature: A trust or will that has been signed without witnesses present, or without a signature from the testator at all, can be challenged.

No-Contest Clauses & Creating a Challenge

Now that you know the legal grounds necessary for you to challenge a will or trust, it is time to learn how you can and, perhaps more importantly, if you should. Before you jump up and shout out that you want to contest a will or trust, it pays to know whether or not there is a no-contest clause present. A no-contest clause states that anyone who challenges the will or trust and subsequently loses their case will be removed from receiving any benefits, properties, or inheritances as outlined in the will or trust. In other words, if you are already receiving a healthy portion of the estate, you may want to think twice about raising a challenge, even if you suspect evidence of impropriety does exist. But this is where the Law Office of Conrad Willkomm, P.A. steps in.

Challenging a will or trust is not an easy process by any means. You will need to prepare yourself and a solid case for probate litigation after gathering enough evidence of impropriety to support your claims. With the help of our Naples probate litigation attorney, you can feel confident in knowing that no mistakes are being made in your case. Not only can we advise you whether or not you should challenge a will or trust in the first place, but we can also stand by your side from start to finish, even if you do ultimately decide to take the matter to court.

Call 239.262.5303 today to request a free case evaluation with our team to begin.

Categories: Probate, Trusts, FAQ