Steve Novak: How Do I Contest A Will?

Wills in Utah pass through the probate process in one of two ways: either formally or informally. The distinction is a matter of an in-court hearing. A more complicated estate that requires a hearing to open or close probate is formal. Probates that dispense with hearings because an estate has limited assets are informal. You cannot challenge formal probate after it is closed. However, if the probate process is informal, you can contest the will up to three years after the decedent’s death. The executor of the will decides whether probate will be formal or informal.

• File a petition with the probate court to request a formal testacy proceeding. Under Title 75 Section 3-401 of the Utah Legislative Code, you can either ask the court to set aside an informal probate that has already been closed or you can ask that a probate in process be stopped from closing until you explain your objections to a judge. You must state your reasons for objecting in the petition.

• Serve notice to all interested parties that you have filed a petition to either block or reopen probate. Title 75 Section 3-403 of the Utah Legislative Code lists exactly who you must notify, but in general, it includes the decedent’s spouse and children, any more distant relative who would be in line to inherit under Utah’s laws if the decedent had died without a will, everyone named in the will and the executor of the estate. Utah also requires that you publish a notice in a newspaper for anyone with rights to the estate who you may not know about or anyone whose current address you don’t know.

• Appear at the testacy hearing when the court assigns a time and place. You might have a great deal to lose if you cannot convince the judge that your objection is reasonable, so even if you have represented yourself up to this point, you should consider hiring an attorney to appear with you in court. For instance, some people put clauses in their wills that if any of their beneficiaries contest and lose, they receive nothing, not even a nominal bequest they might have received otherwise. But under Title 75 Section 2-515 of Utah’s Code, you cannot be punished if you win your contest or have a legitimate reason for objecting. For example, a penalty clause is unenforceable if you are objecting to the will because you have a more recent, valid one in your possession. It is only enforceable if you claim that the decedent was incompetent when he made his will and his estate can prove that he was not.

Grounds For Contesting A Will

• Before learning how to contest a will, it is necessary to understand what constitutes a valid will. So the first question is – is there a valid will?

• Expressly revoke all previous wills and codicils (Even if there are none);

• Appoint a personal representative;

• Appoint a guardian where minor children are (or may be) involved;

• Provide a formula or method for distributing your property.

Your will may also want to include information such as: Provisions leaving specific items to specific people; Wishes concerning funeral and burial arrangements; Waiving of any requirement of a bond for the personal representative. Additionally, the will should be signed by the testator (The person making the will) or in the testator’s name by an individual in the testator’s presence. It should also be signed by a minimum of two individuals who have signed after witnessing either the signing of the will or the testator’s acknowledgement of the will.

When a will is successfully contested, the testator’s/testatrixes prior will is then considered to be his/her will. If there was no prior will, or if the will is lost and no one has an executed, and valid copy of the prior Will, the testator is treated as if he/she died intestate (without a will.) If the person is deemed to have died without a valid Will, the court will then distribute the estate to those who would take the estate assets on an intestacy basis. A noted previously, a will has to be in writing, in the correct form, and executed according to the laws of the State, in order to be valid. Most of the cases contesting wills emanate from issues dealing with improper form or execution of a will, and the majority of the time, involve wills that were prepared by individuals instead of attorneys.

Reasons to Challenge or Contest a Will

It is typically very difficult to challenge a will. Approximately 99 percent of wills pass through probate without issue. Wills are seen by the courts as the voice of the testator, the person who wrote the will. Since that person is no longer here to speak about his or her wishes, the courts stick pretty stringently to the will. Anyone who may have an interest to gain from the will can challenge a will. The most successful challengers are usually the spouses, and the most successful grounds are that the person lacked testamentary capacity or that the person was unduly influenced or persuaded to write the will a certain way. If you challenge a will and are successful, it can be voided in its entirety or just in part. Sometimes, a prior provision, such as from a previous will can be reinstated. If the entire will is voided, the court will distribute the property as if no will had ever existed. This distribution follows intestacy laws, and is guided by familial relationships.

Testamentary Capacity

The law requires that only adults 18 years of age or older have the capacity to create a will. Minors lack the capacity to form a legal will. However, in some jurisdictions, minors who serve in the military or minors who are married are given the right to make a will. Adults are presumed to have testamentary capacity. When litigation arises that challenges an adult’s testamentary capacity, it is usually on the basis that the adult has senility, dementia, insanity, was under the influence of a substance, or in some other way lacked the mental capacity to form a will. Basically, to challenge a will based on mental capacity, you must show that the testator (the person who created the will) did not understand the consequences of making the will at the time of the will’s creation. More specifically, the person must understand:

• The extent and value of the property;

• Who he or she is expected to provide for and who the beneficiaries of the will are;

• The disposition he or she is making and what a will means; and

• How these elements relate in order to form a distribution of property.

Fraud, Forgery, and Undue Influence

You can challenge a will by showing that the will was procured by fraud, forgery, or undue influence. This usually involves someone manipulating a vulnerable person into leaving all or much of the property to the manipulator. The term “undue influence” merely means that the person lacked the free will to bargain because of the manipulator. If the executor is trying to carry out the provisions of an outdated will, the newer will can trump this older will. Typically, there are requirements to destroy the older will. It is best to always destroy or show intent to void any outdated will, should one decide to change or update his or her will. Many people even state in the new will that the will is intended to trump and/or void out the previous will. This is why dating the will documents is so important. The court’s interest is to fulfill the wishes of the testator. If a valid legal will surfaces that is dated more recently than the will being executed, the court is likely to follow the newer will. Each state varies as to what constituted a voided and updated will, so be sure to check with your state’s laws.

Sufficient and appropriate witnesses

A typed hard copy of the will must be dated and signed by the testator in the presence of at least two adult witnesses. Vermont requires three witnesses. Most states require that the witnesses not be people who are named as heirs in the will. If in one of these states, a witness is named in the will; his or her gift may be voided, but not the rest of the will. About half of the states do allow handwritten, unwitnessed wills. These are called “holographic” wills and they must be written and signed entirely in the testator’s handwriting and in some states, they must be dated. Holographic wills are the easiest wills to challenge, because there are no witnesses. In the case of a holographic will, the court must be convinced that the entire thing is in the testator’s handwriting and that it was created to serve as a will of the testator.

The Will’s Provisions

Each state has its own laws about what a valid legal will must contain. Most states require that the will:

• explicitly states that it is the testator’s (the person who created it) will;

• includes at least one substantive clause, such as leaving a certain piece of property to a certain heir; and

• appoints a personal representative (executor or executrix) to be responsible for invoking the terms when the time comes. In many states, the court will appoint an executor and enforce the will, even when the will names its own executor.

Self-proving affidavit

There is no requirement that a will should be notarized. However, many people include a self-proving affidavit in their wills. This is a sworn statement that the witnesses sign in front of a notary public, which relieves the witnesses of having to come to court later to swear to the validity of the will

Residence of the testator

As long as the will was valid and legal according to the laws of the state where the testator had his or her permanent home, then the will is valid in any state where the testator dies. A will can be very beneficial to a descendant’s family and loved ones, but there are times when a will should be given a second look and possibly amended or scrapped. If you believe one of more will provisions shouldn’t be enforced, you may want to get the opinion of a legal professional. Get started today and find an experienced, local estate planning attorney. Not everyone can contest a will. A lawsuit brought to challenge the validity of a last will and testament can only be filed by certain people who would be personally and financially affected by the will’s terms if it were to be accepted by the court as it is. In legal terms, these people are said to have “standing.”

Disinherited Heirs-at-Law

An heir-at-law is someone who is so closely related to the decedent that she would have received a share of the estate if the decedent had died without a will. Heirs-at-law have standing to contest a will. Property passes to heirs-at-law in a process known as “intestate succession” when someone dies without a will. In most states, this means his spouse or direct descendants inherit first. Direct descendants include his children or grandchildren. Parents and more distant family members, such as siblings, would only inherit if the decedent wasn’t married and left no living children or grandchildren. If a decedent was survived by three children but only two are provided for in his will, the third child should have legal standing to file a will contest. But this doesn’t necessarily mean she would win the case. She can’t challenge the will simply because she has standing and she wasn’t named in it. She must have cause. This means that she would have to establish to the court’s satisfaction that the deceased didn’t intentionally cut her out of the will, or that will isn’t valid for some other reason. Perhaps the deceased was under duress or was mentally incapacitated at the time he wrote it. The will might subsequently be thrown out due to its invalidity, and the estate would then be distributed as though the deceased had died intestate or without a will.

Beneficiaries and Fiduciaries in a Prior Will

Any person or entity named in an older will would have sufficient legal standing to contest a more recent will if he has subsequently been cut out of the recent document. He would also have standing if his share of the estate was reduced. Likewise, if the individual was named as fiduciary or executor of the estate in the first will, but he’s been replaced in a subsequent will, he should have adequate standing to challenge the more recent last will and testament. The same caution applies. These people would have to establish that the subsequent will is invalid for some reason.

Who Can’t File a Will Contest?

You most likely don’t have legal standing to file a will challenge if you weren’t named as a beneficiary in another will, or if you’re not an heir-at-law. This is the case even if you suspect that the will is invalid.
Minors typically cannot contest a will because they lack the right to initiate any legal proceeding until they reach the age of majority. Most states permit a parent or guardian to challenge a will on a child’s behalf, however.

No Contest Clauses

A potential complication is that some wills include no contest clauses. These state that beneficiaries will lose the inheritance the will gives them if they unsuccessfully challenge it, losing the will contest in court. Otherwise, the court’s verdict would prevail. Of course, a beneficiary really has nothing to lose by challenging the will if she’s been cut out of it entirely.

What Should You Do?

Will contests are a complex area of law. Consult with a lawyer who specializes in this type of probate matter to find out if you have legal standing and if you have possible grounds—a supportable reason why the will should be overturned.