How To It is necessary to show that a will was signed under Duress.
Wills must be signed willingly if they are to be valid.There are physical attacks or threats of physical violence.If you want to challenge the will for "undue influence", you should know that this is the term most often used in probate.The judge will look at any threats a person made or how dependent the deceased was on the person alleged to have unduly influence him or her.
Step 1: Check to see if you can file a lawsuit.
Who can contest a will will probably be limited by your state law.If the will was invalid in Michigan, you have to be an heir or beneficiary under a prior will.If you were a good friend of the deceased, your state may not allow you to file a lawsuit.You should read your state's will contests law to see if you can file a lawsuit.You can find the laws of your state on the internet.The nearest law library may be at the courthouse or a nearby law school.
Step 2: You can draft a complaint.
The will must be submitted to the court to be admitted after a person dies.You should be contacted if you are a beneficiary or heir.The will can be challenged by drafting a complaint.After the will has been admitted by the court, you can file the complaint.You should check your state law to see how long you have to wait after the will has been admitted.If your court has a form complaint, you can use it to draft your complaint.The will was filed in the court.A lawyer could draft the complaint for you.You would benefit from hiring a lawyer.You can ask for a referral if you contact your local or state bar association.
Step 3: The form needs to be completed.
Use a typewriter to enter the information.The judge will be given some background on the case by the complaint.At this point, you don't have to prove that the will was signed under duress.The deceased should be identified as the "decedent" in the complaint.The power of the court to hear the case stems from the fact that the deceased resided in the county where the will was submitted.Background facts, such as the date of the death, the time the will was signed, and why you think the deceased signed under duress, should be provided.There is an allegation that the will is invalid.You could say, "Contestant alleges that the Will should be set aside because Decedent was coerced to sing it by others."
Step 4: The complaint should be filed.
You should make several copies after you have finished your complaint.Ask the clerk to file.The filing date can be stamped by the clerk.It is likely that you will have to pay a fee to file your lawsuit.The amount will be determined by the court.Call ahead of time to find out the amount and acceptable methods of payment.You can ask for a fee waiver if you can't afford it.
Step 5: Notices should be served on other parties.
You have to give other interested parties notice that you are going to challenge the will.If a party could have brought a lawsuit against the will, they would be interested.The methods of giving notice may be different.Notices will be sent to interested parties in some courts.You may be responsible for serving notice of the lawsuit in other courts.Check your court rules for service of process.
Step 6: Is there duress?
A person signs a will when they face threats or force from another person.A common example of duress is threats of a physical attack withholding food, water, or medicine from a person.
Step 7: Make a list of undue influence.
Most wills are challenged for "undue influence."Someone exerts pressure on the deceased's free will.It is difficult to pin down exactly what constitutes undue influence.There are two ways to prove undue influence, direct evidence and indirect evidence.You can show that someone has taken over the deceased's will.You could show how the elder's caretakers threatened her and kept her food until she changed her will.There is a presumption of influence when a person with power over the deceased helps procure the will.You don't need proof of threats here.The relationship between the beneficiary and the deceased creates a presumption that influence was exerted.
Step 8: The people who witnessed the will should be contacted.
Two people are required to witness the will being signed.The people could give helpful information about the death.Try to find them and interview them.It might be hard to find witnesses if the will was signed a long time ago.You can use the internet to find out if they are still living.The witnesses should be asked what they remember about the will signing.What did the deceased look like?Was he or she nervous?Is the deceased dependent on the beneficiary?
Step 9: There is evidence of manipulation.
There are many different types of manipulation.Not all manipulation is threatening.You need to look for evidence of threats.Did someone threaten to hurt the dead unless they wrote their will in a certain way?Ask people who saw the deceased if they witnessed any threats.The person is holding food or medicine.Elderly people rely on other people for food, medicine, and care.Did the deceased's caretakers threaten to stop giving food or medicine if they didn't have money or property?There is fraud.The will could have been drafted in a certain way if the caretakers had lied to the deceased.A dead person could have been told that her son had died and that she needed to change her will.If the will is changed under false pretenses, you should ask the lawyer who drafted it.
Step 10: Other evidence of influence can be found.
Someone can influence the deceased by keeping him or her away from other family members.The elderly person feels totally dependent on the beneficiary and this type of isolation can create undue influence.Ask family and friends if they were able to contact the deceased or if a caretakers kept them out of sight.
Step 11: There is a presumption of influence.
If your state allows you to establish a presumption of influence, check your law.In Illinois, you can establish a presumption of influence by showing a fiduciary relationship between the deceased and the beneficiary.The fiduciary relationship can be one of law, such as an attorney-client relationship, or one where the deceased totally trusted the beneficiary to handle some aspect of his or her affairs.The beneficiary was trusted by the deceased.Witness testimony is needed to prove that the deceased trusted the beneficiary.You could show that the deceased trusted the beneficiary enough to give him or her power of attorney.The will was prepared by the beneficiary.You could have the lawyer who drafted the will testify that the beneficiary contacted him or her.A substantial benefit was given to the beneficiary.The benefit this person would receive can be shown in the will.
Step 12: Discoveries can be used to find helpful evidence.
You will be able to engage in fact- finding after you file your request to challenge the will.Request documents is one of the techniques you can use.You can get copies of helpful documents.You could get evidence that the beneficiary had control over the deceased's finances by requesting copies of any power of attorney or bank documents showing access.Interrogatories are used to ask questions.The witness answers the written questions under oath.You could ask the caretakers if they contacted a lawyer to write the will.You could ask for a list of the drugs the deceased was taking.You can ask questions and the witness will answer them under oath.The questions and answers are usually taken down by a court reporter.You can ask the lawyer who drafted the will questions about the deceased's intentions.The attorney-client privilege is usually not needed in this situation.
Step 13: You should serve subpoenas on your witnesses.
You should serve your witnesses with subpoenas to make sure they show up for the trial.A subpoena is a legal request to show up at a court to give evidence.Ask the court clerk for blank forms.You will have to serve them on the witnesses.Find out how much advance notice you have to give the witness by checking your court rules.The witness cannot be subpoenaed the day before the trial.You have to give the witness a couple weeks notice.
Step 14: Put your evidence in order.
Your documents need to be lined up before your trial or hearing.To support your argument that the deceased signed the will under duress, you should look through your papers.A document can be turned into an exhibit by attaching a sticker to a corner.The sticker should not obscure important text.You can ask the court clerk if they have any exhibit stickers.
Step 15: It's appropriate to dress appropriately.
Your credibility will be influenced by how you look.When appearing in court, you should always dress nicely.Because courts are conservative places, you should dress in a way that doesn't draw attention to yourself.It's not the right time to express yourself.Men are able to wear suits.A man should wear a shirt and tie, but not blue jeans.He should wear shoes that are clean and neat.Women can wear conservative dresses as well as skirt suits.Women should not wear clothing that is too tight.If you could wear it to a club, then you should not be in court.Don't wear baggy pants, shorts, flipflops, T-shirts, tank tops, hats, or sunglasses.
Step 16: You need to present your witnesses.
You can call your witnesses first.If you have a lawyer, he or she should handle the trial for you.You will need to ask your witnesses questions if you are representing yourself.A witness can only testify about what he or she observed.A witness can testify that the deceased was slapped or threatened.They can't say that their friend saw that.Question witnesses when Representing yourself has tips on how to question a witness.
Step 17: Cross-examine the other side's witnesses.
People might testify for the other side.A beneficiary who received a large share of the estate might testify that he or she did not influence the deceased.The witnesses will have to be cross-examined by your lawyer.Cross-examination shows how the witness is biased.If the will is not invalidated, the witness could inherit money.There is a reason to bend the truth in this situation.
Step 18: Make your final argument.
The purpose of closing argument is to remind the jury of important pieces of evidence and to explain that the evidence shows the deceased signed the will.If you are trying to prove a presumption of influence, you need to make sure that you present evidence for each element.