A Last Will and Testament can be 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 to be very specific, deliberate, and unambiguous.It is not unusual 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: See if you have the ability to challenge a will.
Only a few people can challenge a will.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 courts.
Step 2: If the will was signed properly, 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.The witnesses are not beneficiaries in some states.You can find the precise signing requirements by checking your state law.
Step 3: Do you know if the will was signed under pressure?
A will signed under pressure will not be valid.An example of duress is an elderly person who creates a will in order to protect her from being abandoned.
Step 4: If the will was procured by fraud, you should uncover it.
It is rare for fraud to happen.The will she actually did sign would not be valid if the testator was told 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: You can find out if you have been excluded.
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 the will if you are excluded from it.You have a strong case if the will was drafted before you were born.You have no recourse if you were excluded.
Step 7: Do you know 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?
It might be better if you don't challenge the will.Absent a valid will, the testator's estate will be divided among the heirs.You won't get 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 will 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 in Michigan, the no contest clause will not apply.No-contest clauses can be allowed in California.
Step 11: The costs should be evaluated.
You will want an attorney if you file a suit.Attorney's fees vary depending on location.You can expect to pay up to $200 an hour for competent legal representation.You can do initial fact-finding on your own.You shouldn't expect pro bono representation for a suit challenging a will.
Step 12: The preliminary fact gathering should be done.
If you want to file a suit in court, you need to base your complaint on something more than gossip.If you think a will was fraudulent, you should speak to the witnesses at the signing.You can be reprimanded for filing a lawsuit.A suit without a basis will be considered frivolous.It is possible that you will have to pay the defendants attorneys' fees.You should keep a record of your meetings.You should record the conversation if possible.
Step 13: You can draft a complaint.
A lawsuit begins after a formal complaint.There is a blank complaint form at the court.It was called an objection in some states.The complaintIdentifies the parties, as well as doing four other things.The executor of the estate is the one who would be sued.You should list all the people who are beneficiaries under the will.It is the legal basis for bringing the complaint.You would argue that the will was invalid.Explains the facts of the case.Explain the facts that support your legal argument that the will is not valid.The court is asked for relief.You want the court to invalidate the will.
Step 14: The complaint should be filed.
You pick up your complaint form at the same place where you file in the court.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.If you can't afford it, you should mention it in your application.The process server costs upwards of $100 per document served.
Step 16: You may face demurrers or motions to dismiss after you file your complaint.
In this type of action, a demurrer or motion to dismiss may represent 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 need to interview key witnesses.You can now follow up on other leads.To inquire about the testator's state of mind, 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 with the testator.They can be a good source of information if they have observed the testator on a daily basis.Speak to the people who witnessed the will signing.They are the best witnesses for the testator.The will was drafted by an attorney.Attorney-client privilege can limit what she can tell you.It is possible to try.When interviewing people under the will, be careful.They could lie to you or resist working with you.
Step 18: Receive and read the answer at the same time.
The complaint must be answered by the defendants.He will usually deny the allegations.
Step 19: Look for discovery.
You will file a discovery motion if you need the documents.Ask the clerk to give you 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 the hearings.
Pretrial hearings and conferences are where you or your attorney can discuss the case.You can schedule a trial date if you haven't reached a satisfactory settlement.
Step 21: They should summon witnesses.
Look over the witnesses you have interviewed and identify the ones who help you make your case.Print 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.Up front, acknowledge bad facts.The jury shouldn't be surprised if the doctor testifies that the testator had enough mental capacity.Be brief.The attention span of an adult is five minutes.
Step 23: You can call witnesses.
Parties argue at the end of evidence that supports their side in a court case.Your attorney will call witnesses who will support your argument that the will is invalid.The person challenging the will will go first.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 can be cross-examined.
You can poke holes in the testimony of defense witnesses just as the defense can cross-examine your witnesses.You should try to diminish their credibility.A good way to challenge a witness's credibility is to show that she wasn't at the event.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 with a felony conviction can be impeached.The judge will look at a person's criminal history to determine their credibility.
Step 26: There is a closing argument.
Your attorney will argue that the evidence supports your argument.The closing argument links the evidence to the legal issues.If you are arguing that the testator lacks mental capacity, you need to tie the medicine for Alzheimer's to your point.Even though the closing arguments have been prepared, they should not be read from a prepared script.