A Last Will and Testament is used to distribute one's estate.The estates are divided according to the proceedings.It can be difficult to contest a will because they are usually written by an attorney who is very specific, deliberate, and unambiguous.It is not uncommon for people to complicate their estates by drafting additional codicils on their own and there are many situations where it may be appropriate to contest a will.
Step 1: Do you have the ability to challenge a will?
Some people can challenge wills.This list may include anyone who would have been an heir if the person had died without a will.An earlier will was submitted to the court.
Step 2: If the will was signed correctly, you should check it.
Signing requirements can be found in each state.If the will was signed in the presence of two witnesses, it is valid.Some states don't allow witnesses to be beneficiaries under wills.To find the precise signing requirements, check your state law.
Step 3: Do you know if the will was signed under pressure?
A will signed in bad faith will not be valid.An example of duress is an elderly person who creates a will in order to protect their loved one.
Step 4: If the will was fraudulent, uncover it.
It is rare for fraud to happen.The will she actually did sign would not be valid if the testator was told that she was signing a contract.
Step 5: Determine if the testator has the mental capacity to do the job.
One of the most common challenges to a will is that the testator lacks mental capacity because of mental illness, senility, or dementia.If challenged, sufficient mental capacity can be established by showing that the testator knew the objects of his bounty, understood the kind and character of the property, and made a disposition based on a plan in his mind.
Step 6: If you have been excluded, find out.
You would normally be considered an heir if you were born, married or discovered by the testator after the will was executed.You may be able to contest it if you are excluded from the will.There is a strong case for unintentional exclusion if the will was drafted before you were born.You have no recourse if you have been excluded.
Step 7: Determine if the will was forged.
If you have reason to believe the will was forged, you should submit it to the court.
Step 8: You still have time to contest the will.
There are time limits for challenging wills in most states.States laws will not be the same.Depending on whether or not you were served the petition, the dates for these challenges will be different.
Step 9: If the will was invalidated, how much would you get?
If you don't challenge the will, you might be better off.If a testator does not have a valid will, his estate will be divided among his heirs.You won't receive anything if you're not an heir.You should rethink challenging the will.An estate is usually divided between the surviving spouse and the children.If there is no surviving spouse, you would take a third of the estate.If you are unhappy that you only received half under the will, you might not want to try to invalidate it.
Step 10: There is a no contest clause.
If you contest a will and lose, you won't get anything.Accepting your portion of the estate might be better for you.Some states don't enforce "no contest" clauses.If there was probable cause to initiate proceedings, the no contest clause will not apply in Michigan.No-contest clauses are allowed in California.
Step 11: Evaluate the costs.
You will want an attorney if you file suit.Attorney's fees vary depending on location.You can expect to pay upwards of $200 an hour for competent legal representation.You can do initial fact- finding on your own.Pro bono representation for a suit challenging a will is not something you should expect.
Step 12: The preliminary fact gathering should be done.
If you want to file a suit in court, you have to base your complaint on something more than gossip.If you believe a will was fraudulent, you should speak to the witnesses at the signing.You can be punished for filing a lawsuit.A suit without a basis will be considered frivolous.You may have to pay the defendants attorneys fees.You should keep a record of your meetings.You should record the conversation if possible.
Step 13: Make a complaint.
A lawsuit is started by a formal complaint.Request a blank complaint form at the court.It was called an objection in some states.There are four things that the complaint does.The executor of the estate is the one who would be sued.You should list all the people who are beneficiaries under the will.The legal basis for the complaint is stated.You would cite the appropriate statute to argue that the will was invalid.The facts of the case are explained.Explain the facts that support your legal argument that the will is invalid.The court is asked for relief.You want the court to invalidate the will.
Step 14: You can file the complaint.
You pick up your blank complaint form and file in the same place as before.The filing fee is likely to be up to $200.You should inquire about filing as an indigent if you can't afford it.The form should be in the clerk's possession.
Step 15: Notices should be served on the administrator.
The administrator of the will should be served.You can either pay to have the sheriff serve the complaint or use a process server.You should mention this in your application if you can't afford it.The cost of a process server is high.
Step 16: You may face demurrers or motions to dismiss after you file your complaint.
A demurrer or motion to dismiss may be a bigger hurdle than in most civil suits.
Step 17: You need to gather your evidence.
If your complaint has a basis in fact, you should have interviewed key witnesses.You can now follow up on other leads.To inquire about the testator's state of mind, you should speak to any health care providers.You can use this information to show lack of testamentary capacity if the testator has memory loss or mood swings.Speak to anyone who lived in senior housing with the testator.They can be a good source of information if they have observed the testator on a daily basis.If you haven't already done so, speak to the people who witnessed the will signing.They are the best witnesses for the testator.The attorney who drafted the will should be contacted.Attorney-client privilege may limit what she can tell you.It is possible to try.When interviewing beneficiaries under the will, be careful.They could lie to you or resist working with you.
Step 18: You should receive and read the answer.
The complaint must be answered by the defendants.He usually denies the allegations.
Step 19: Seek discovery.
You can file a discovery motion to get the documents you need.Ask the clerk for a blank motion and list the documents you want.You can request discovery from anyone who has relevant documents, such as "Anything relating to testator's mental fitness" or "correspondence related to the will."
Step 20: Attend hearings.
Pretrial hearings and conferences are where you or your attorney can discuss the status of the case.You can schedule a trial date if you haven't reached a satisfactory settlement with the other party.
Step 21: They should summon witnesses.
Look over the witnesses you have interviewed and identify the ones who help you make your case.Print out the day and time of the trial and issue them a summons.There are summons forms at the courthouse.You can either mail them to the witness or serve them on a process server.
Step 22: An opening statement should be prepared.
What you intend to prove is laid out in an opening statement.The opening statement is not evidence.Bad facts should be acknowledged up front.The jury shouldn't be surprised if the doctor testifies that the testator had sufficient mental capacity.Be brief.The attention span of an adult is five minutes.
Step 23: Call witnesses.
Parties argue at the end of evidence that supports their side in a court case.The witnesses who best support your argument will be called by your attorney.You will go first if you are the person challenging the will.The defense can cross-examine witnesses.
Step 24: Allow documents to be used in evidence.
There are documents that support your argument that the testator was senile.The documents will be introduced into evidence by your attorney.If the testator was taking medication for Alzheimer's, you would want the prescription introduced into evidence.This evidence can be considered by the jury.
Step 25: The defense witnesses should be cross-examined.
You can poke holes in the testimony of defense witnesses just as the defense can cross-examine your witnesses.You need to diminish their credibility.A good way to challenge a witness's credibility is to show that she wasn't there.You can use credit card receipts to show her that she was at a shopping mall when she claimed to have witnessed a will signing.Someone can be impeached if they have a felony conviction.Someone's criminal history will be taken into account by the judge in determining their credibility.
Step 26: The closing argument should be presented.
Your attorney will argue at the end of the evidence that it supports your argument.The closing argument should link the evidence to the legal issues.If you are arguing that the testator lacks mental capacity, you need to tie how the medicine for Alzheimer's supports your point.Even though the closing arguments have been prepared, they should not be read from a prepared script.