We certainly hope that our loved ones will accept our final wishes, but unfortunately, disagreements and old hurts can make an appearance during such an emotional time. When someone is left out of a will, or feels he or she did not receive a fair share of an estate, that person may contest the will based on one or more of the following:
- The testator, the person who had the will created, lacked the capacity to make a will.
- Another person had undue influence over the testator;
- There was fraud involved before or while the will was being created; or
- There was a mistake in the will – for example, another child was born after the will was drafted.
Who can file a will contest? Generally, anyone who has a legitimate financial interest in the estate can challenge the will. The person’s financial interest must be more than speculative. In other words, you cannot contest a will if you were friends with the deceased and think she should have left you something. However, if you were not left anything in the will, but would be entitled to something under the state intestacy laws or a prior will, you would be in a position to challenge the will. Why? If you were to win the will contest, the will would be found invalid and the estate would be distributed according to a prior will or the laws of intestacy. If you would not receive a share under the prior will or these laws, what would be the point of filing a will contest?
Proper estate planning can help reduce the chances of a will contest, and there are tools an estate planning attorney can use if you are worried about a loved one challenging your will.
John’s practice focuses on the use of Wills and Living Trusts in Estate Planning to help individuals protect their families and preserve their legacies after their deaths, but his practice also focuses on the critical issues of protecting individuals with dementia or other diminished capacity, assisting individuals in qualifying for Medicaid and other government benefits to offset the costs of long-term care, and providing special needs planning.
John is admitted to practice law in North Carolina, South Carolina, Kentucky, and Ohio, and he is accredited by the Department of Veterans Affairs.
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