Contesting a Will

How to avoid anyone contesting a will

Contesting a Will entails attempting to have the Will, or parts of it, overturned through the court. While there may be a compelling reason you were excluded from a will, there might also be other options. Because contesting a Will is expensive and time-consuming, it's smart to seek legal counsel before doing so.

The chances of contesting a will and winning are slim. Research shows that less than 3% of wills are contested, with most will contests ending up unsuccessful. You need solid legal grounds to contest a will. If you think you can contest a will for any other reason, such as out of spite or because the deceased did something wrong to you, it is time to stop and rethink your strategy.

There can be many reasons why a last will and testament is contested. A common example relates to mistreatment of family members by someone who was supposed to care for them. Another reason is because of the contents of the will, if they are deemed unfair or unjust. Perhaps there are hidden assets that have not been included in the estate. Perhaps someone who should have been included in the will was written out, and that person feels they should inherit a greater portion than what they received.

You can use the following guidelines to help you successfully assess whether a legal will is contested:

  • If someone has been left out of a will.
  • If there is hidden or unreachable assets which are part of the estate.
  • If a spouse, partner or child has been wrongfully excluded from inheriting property.
  • If someone is being mistreated by those who are now in charge of their inheritance.

There are legal reasons why a will can be contested besides not meeting moral standards for fairness and justice.

To decide whether a will can be contested or not, you need to consider whether it meets the legal guidelines that have been set out. The legality of a will does not only depend on the way in which it was written and signed, but also other aspects such as:

  • Was it witnessed properly?
  • Was there independent advice given to the person writing the will?
  • Was there any undue influence or duress?
  • Is the person who is contesting the will able to provide evidence for this and, most importantly, is it legally sound?

An important aspect to consider when looking at a contested will is if someone may have been under duress. Duress is when someone forces a person to make a decision they would not have made in a normal situation. Undue influence is when someone has exploited, abused or taken advantage of a vulnerable person in order to get them to make certain decisions. Both can be grounds to contest a will.

A will is witnessed properly when two people who are not a beneficiary of the will or a spouse or blood relation to a beneficiary, sign as witnesses. The person who's will it is and the witnesses must all be present at the same time and see each other sign the will.

If a person is not of sound mind and body when they signed the will, then it may be contested on those grounds. If a person is not of sound mind and body when they signed the will, then it may be contested on those grounds. The determination of mental capacity for a contested will is based on the findings of medical professionals who have been appointed by a court.

If someone is contesting a will on the basis of mistreatment by those who are now in charge of their estate.

For example, if someone's child has been cut out of a will and mistreated by those who have taken control over finances since the parent passed away, a court may rule in their favor. A contested legal will should not only take into account the contents of a will itself, but also other factors relating to why it is being contested

If you are making an application to contest a will, you need to include relevant court cases that prove your point. This means researching online and finding cases where the courts have ruled in favor of family members who are contesting the legality of a loved one's last will and testament. Legal research papers need to include more than just one case; you should find at least three cases that support your argument. The higher the level of the court which decided these cases, the more persuasive they will be.

Some ways to reduce the chance of someone contesting your will include:

1. Reduce any signs of undue influence. 

To avoid the impression of undue influence, do not include relatives who are receiving under your will in the creation of your will. When you talk to your attorney or sign it, family members should not be present.

2. Explaining your choices to your loved ones.

If family members understand the logic behind your will, they are less likely to challenge it. At the time you write your will, communicate with family members and explain why someone has been excluded or given a lesser portion of the estate. If you don't talk about it in person, put down the reason in the document. You might also want to include a letter with your will setting out your reasoning.

3. Include a no-contest clause.

A no-contest clause may be added to your will to prevent a legal challenge. This will only work if you are willing to offer something of worth to the family member who might be disgruntled. If an heir challenges the will and loses, he or she receives nothing under a no-contest clause.

4. Prove mental competency in advance.

One approach to contest a will is to claim that the deceased family member was not mentally competent at the time he or she signed it. To reduce the risk of this, have your attorney check your mental competence. This may involve seeing a physician or simply answering a series of questions.

5. Make a video of signing the will.

A video recording of the will signing allows your family and the court to see that you're freely signing the will, making it more difficult to claim that you didn't have sufficient mental capacity to agree to the will.

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