Wills are supposed to ensure that a deceased person's assets are distributed according to their wishes.Greed and treachery can result in wills that can't be trusted, either because of fraud or because someone tricked a vulnerable person into drafting a will to be more favorable to them.When such things happen, interested parties can file a complaint with the court.If successful, the will will be thrown out of court.
Step 1: You should consult a litigation attorney.
Will contests can be complex and emotionally fraught.The interests of the deceased person are best handled by an attorney.As you deal with the recent death of a loved one, keep in mind that your judgement may be seriously impacted by your emotions.It can be difficult to determine if a deceased person was taken advantage of when they were most vulnerable.If your claim is unsuccessful, you could lose any inheritance you were due to receive under the will.Look for an attorney with experience challenging wills and litigating them in court.You want an attorney who has successfully challenged other wills under similar circumstances as you want to challenge the will here.You can find an attorney at the website of your state or local bar association.There is a directory of attorneys licensed to practice in your area, and you can find several attorneys to interview before making your final decision.
Step 2: Get information.
Your attorney will need as much information as you have about your suspicions of fraud so that he or she can make a complaint that brings all the necessary issues before the court.Your attorney will understand that your evidence may be circumstantial at best.The purpose of the pre- trial process is to gather evidence to support your claims.The correct allegations will be made by the attorney.If your cousin cared for your father at the end of his life, his will would leave most of the assets to her.This would be a charge of undue influence, which is similar to fraud but requires different types of evidence, if you believe that your cousin manipulated your father to change his will and leave most of his assets to her.It is possible that your cousin altered the will herself.Your attorney would need to focus on physical evidence to prove that the document was altered.
Step 3: Make a complaint.
The complaint will identify you, the deceased person, and the will you're contesting, as well as setting forth detailed facts that you believe, if proved, that fraud was committed in the drafting or execution of will.In will challenges standing is a key issue.You need to be a close family member or one of the major beneficiaries in the will to stand.If you were a major beneficiary, you need to be a close relative of the deceased person.If there aren't many living relatives, less closely related family members might have standing.The reasons you believe you have standing to bring the lawsuit must be clearly stated in your complaint.
Step 4: Take your complaint to the clerk.
You must file a complaint with the clerk of the court if you want to start a lawsuit.The originals will be kept for the court's records and the copies returned to you.If you've hired an attorney, he or she will typically file the complaint for you, so going to the clerk's office yourself would be little more than an educational exercise.If you're interested in observing the process, you should accompany your attorney.The fee to file a lawsuit is usually around $100.The fee will be added to your bill by your attorney.If you can't afford the fees, ask the clerk for a fee waiver.If your income and assets fall below the threshold, you won't have to pay court costs.
Step 5: The other parties need to be served.
It must be served on the personal representative of the estate, as well as any major beneficiaries or other parties of interest, after you've filed your complaint.The clerk of the court will usually have a list of people who need to be served.These are people who previously told the court that they wanted to be kept up to date on the case.Typically, legal service is accomplished by having the documents hand-delivered by a sheriff's deputy, who then completes the proof of service form to file with the court.Mail service may be available.You can mail the documents to the person you want to serve using certified mail.You can use the green card you get back to complete the proof of service document.
Step 6: Receive responses from the other parties.
A motion to dismiss your claim may be filed by any party that you receive notice of.For other parties a response may be allowed but not required.If a motion to dismiss is filed, the court will hold a hearing before the litigation can begin.At a motion to dismiss hearing, you only have to show that there is a significant issue of fact to be decided.The judge will usually allow the case to proceed through the discovery phase to see if you can find any evidence that supports the allegations made in your complaint.Most, if not all, of the allegations in your complaint should be denied by the answer you receive.The other party may argue that you don't have the right to bring the lawsuit because you are not related to the person who died.
Step 7: Write the discovery.
Interrogatories are written questions that must be answered in writing under oath.There are requests for documents related to the complaint.Interrogatories and requests for production may not be helpful if you don't know the facts of your fraud claim.If your fraud claim is based on undue influence, the opportunity to review the deceased person's medical records and find out the names of their doctors is an important part of requests for production.This information can be used to determine how vulnerable the person was when they executed the will.
Step 8: Speak to any witnesses.
In a will fraud claim, witnesses will be important in describing the context under which the will was signed or the contents of it.In a deposition, a witness or other party to the litigation is interviewed under oath.A written transcript of all that was said can be used throughout the litigation if the court reporter records the proceedings.The person you believe committed the manipulation of the deceased person is one of your most valuable depositions.That person's answers in the deposition can give you insight into the defenses or excuses they're likely to present at trial so you and your attorney can work on finding evidence to contradict it or bring doubt to their testimony.Doctors and other health professionals could testify to the deceased person's mental health at the time the will was drafted.
Step 9: Prepare for trial.
If no resolution to your claim is found, you will have several meetings with your attorney to develop your trial strategy, practice questions with witnesses, and finalize the evidence you'll introduce.If you're going to testify, your attorney will work with you on responses to questions the other side will ask you, as well as going over the questions they'll ask on the stand.Depending on the court's deadlines, you may have to subpoena witnesses to testify in support of your arguments.
Step 10: You have a court date.
If you and your attorney don't show up for the hearing, the judge will likely dismiss your claim.You have time to go through security and get to the courtroom if you arrive at least half an hour early.Before you go to the courtroom, talk to your attorney or check the court's rules to make sure you don't bring anything that is forbidden.Some courts prohibit cell phones, while others only require that you turn them off.You should review the dress code for the court to make sure your attire is appropriate.You don't have to wear a business suit, but dress like you would for a job interview.The two of you can go into the courtroom together if you meet your attorney before the scheduled time.
Step 11: Make a statement.
Each party in the action makes an opening statement that summarizes their arguments and the evidence they will introduce to support it, and then the hearing proceeds.You will not be the one making the opening statement if you have an attorney.You will have to make this speech on your own if you're representing yourself.Make note cards to take with you so you don't forget important points, and outline what you want to say.Don't speak to the other party or anyone else in the courtroom if you are making the opening statement yourself.If you're interrupted, stop speaking and wait for the judge to allow you to continue.
Step 12: You should present your case.
Since you initiated the litigation, you typically have the first chance to present your case to the judge and prove that the allegations in your complaint are true.Don't speak to the other parties in the case when you present your case.If the judge asks a question, stop speaking and answer it.You can introduce evidence that supports your claim if you call witnesses to the stand.You can't ask witnesses questions that are suggestive or lead.The other party has the right to question witnesses.If new information is introduced as a result of that cross examination, you will have the opportunity to question the witness again, which is intended to reinforce the testimony that supports your argument.The court's rules of evidence apply to all evidence.These rules can be difficult to understand on their own.If you're going to represent yourself, you should consult an attorney or other legal expert to make sure the evidence you want to introduce is valid.
Step 13: You can listen to the other side.
Once you've finished making your argument, other parties will have the opportunity to argue against your theories that there was fraud involved in the creation or execution of the will.If the other side brings up any information that you have evidence to dispute, take notes, but don't interrupt their presentation.When they are questioning a witness, pay particular attention.You can cross-examine any witnesses, but your questions are limited to their previous testimony.
Step 14: Receive the judge's decision.
After hearing all sides of the issue, the judge will make a decision as to whether the will is valid or fraudulent.In some cases the judge may issue a verbal ruling from the bench at the end of the proceedings, but more often the order will come later.In complex cases, the judge will often take the case under advisement, meaning that he or she will take some time to look over all the evidence and testimony again before making a decision.If the judge doesn't rule in your favor, you have the right to appeal if you can point to a mistake in the law or a procedural ruling during the trial.Even if you don't hire an attorney to represent you in the original case, you should still talk to one before you file an appeal.