While it is possible to avoid probate court with robust estate planning, many estates will go through a process where executors divide and share assets as best they can, given the information and wishes described by a will. As you might imagine, financial assets like bank accounts may be easily divided by examining their contents at the time of separation. In contrast, holdings like debt, income, and business evaluation may be more challenging to separate fairly.
There are a number of points where a will may be challenged in court. Today we will examine these potential contestation points under the guidelines of “who” and “why.”
Preparing for these contingencies is best accomplished by working with a legal team with experience in estate planning and probate considerations.
Who Can Contest a Will
While not all will contests are done in good faith, there are rights that those impacted by asset distribution may exercise in probate court.
Speaking broadly, the people who have legal standing to contest a will include:
- A spouse or adult common-law partner
- Adult children of the deceased.
- Any person or beneficiary who can demonstrate an ongoing financial interest in the estate.
- The Public Trustee
- Attorneys under an enduring power of attorney
- Heirs on an intestacy
- Trustees of represented parties.
Planning your estate with the following parties in mind will best ensure your will is executed as closely to your wishes as possible.
Why Are Wills Commonly Contested
The parties above may contest a will based on any number of considerations that involve the ongoing wellbeing of inheritors or the overall validity of a will’s execution.
Inadequate Dependent Support – If there is a spouse, interdependent partner, or dependent-aged child pertaining to the will, one can contest the distribution if they feel it didn’t provide adequate financial support.
Interpretation – If the language used in the will is vague or unclear, or a dependent feels it is not being interpreted correctly, it may be grounds for a court to determine the meaning and intent—thus opening avenues of challenge.
A Lack Of Mental (Legal, Testamentary) Capacity – Wills are commonly challenged on accounts of the testator’s mental capacity and may be overturned if a lack of mental contingency can be proven.
Validity Of The Will / Technical Flaws – In order for a will to be valid, it must pass specific characteristics:
- It must be in writing and, barring certain exceptions, have been drafted by a person of adult age.
- The testator or a person must have signed a will under the testator’s direct guidance.
- The will must have been witnessed by at least two witnesses in the presence of the testator, unless the will was personally drawn in their own writing.
- Any alterations following the writing of the will must be properly signed and witnessed.
Undue Influence – A duress contestation occurs when beneficiaries believe and can prove that another person had influenced a testator into making changes to the will or will intent, resulting in a document that cannot accurately reflect the testator’s wishes.
Forged Wills And Fraudulent Wills – Unfortunately, when a will is handwritten, it is a simple process to forge documents. If one can cast reasonable doubt on the authenticity of a will, it may be grounds to contest.
This guideline touches on only a few cases where a will can be contested in probate court. In our experience, thorough estate planning and trusts are the best means for avoiding probate court or any challenges that may take place there. When you consider the importance of this final life project, doing so accurately will give you the peace of mind that your beneficiaries will be taken care of with minimal legal costs accrued in court.
Building a robust system involves expert delegation and execution. Trust Kalicki Collier to approach your unique needs empathetically and focus on clarity and amicable distribution. Contact us today to begin your planning process and explore your options for minimizing probate loss.