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Winning a Will Contest Four Keys to Success

Winning a Will Contest: Five Keys to Success

Wills

Like any legal dispute, there is no guarantee for winning a Will contest. Generally, Wills are contested because someone believes they should be a beneficiary — or a bigger beneficiary — and that there are legal reasons why they are not.

The most common reason for Will contests is coercion, called “undue influence.” A judge will determine if the decedent was unduly influenced in drafting their Will by looking at evidence such as unexpected changes in how the Will distributes property, the decedent’s mental capacity and their relationship with the person accused of exerting the influence, especially if that person is in a position of trust and a primary beneficiary.

Before deciding to contest a Will, there are five questions to ask to help determine the likelihood for success:

1. Who Prepared the Will?

It’s important to know if the Will was prepared by the decedent’s own attorney, or by one hired by the primary beneficiary. This is critical in an undue influence claim.

Of course, we hope and expect that all attorneys act ethically and responsibly. But, there are situations where the primary beneficiary hires an attorney to draft a Will for a family member or someone in their care, and the attorney does not have a full picture of the family’s dynamics or the mental capacity of the person whose Will is being drafted. This gives the opportunity for a beneficiary to exert control over the Will’s provisions to their benefit and to the exclusion of rightful heirs.

2. Who Was Present When the Will Was Signed?

Like knowing who prepared the Will, who oversaw its signing is critical in judging if the Will’s execution is being done with coercion or under potentially nefarious circumstances. A Will should be executed with two disinterested parties and a notary present. Knowing if the primary beneficiary was present is a factor in determining undue influence, as well.

3. Was the Current Version Changed Substantially from Previous Ones?

If the Will contains unexpected distributions, this could be the result of undue influence. A potential heir should present any evidence they have to show that changes to the Will likely don’t reflect the decedent’s intent. Previous versions of Wills or handwritten communications between the decedent and the aggrieved heir can be valuable to show the relationship and the decedent’s intent, as can testimony of other family members, friends or professionals, such as doctors, who knew the decedent and could speak to their intent.

4. What Was the Decedent’s Physical and Mental Condition When the Will Was Signed?

A Will can be contested if it is believed the decedent lacked the mental capacity to execute the Will. The testator (person who is creating the Will) must be of sound mind and competent when the Will was executed. They must understand the property to be included, those who would be expected to be beneficiaries and process of creating the Will and distributions from it.

A testator’s mental and physical condition can also be a factor in an undue influence claim if it is believed a beneficiary is taking advantage of a testator’s diminished capacity.

5. Is it Too Late?

The window in which a Will can be contested is small in most states. In New Jersey, the statute of limitations on contesting a Will is within four to six months of the Will being probated, depending on if the person contesting the Will is a resident of the state. Even a case based on solid ground might be barred if filed too late.

Filing a Will contest can be a difficult decision. If you feel that the contents or execution of a Will should be contested, consult with one of our experienced estate law attorneys by calling 856.782.8450 or visiting our website at www.timriceelderlaw.com.

 

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