Tuesday, November 2, 2010

How to Contest a Will - Part 1

I get a lot of questions about contesting wills. Some people want to know if they can challenge a will made by a relative. Some people want to know if a relative will be able to challenge the their will. In practice, wills are hard to challenge. A will is meant to express the wishes of the person who signed it, and probate judges are dedicated to seeing those wishes carried out.

There are three ways to challenge a will: (1) it was not signed and witnessed as required by law, (2) it has been revoked, and (3) it did not, in reality, express the wishes of the person who signed it.

In this post I will talk about proper signing and revocation. In the next post I will discuss how to challenge a will because it does not express the wishes of the person making it.

Was the will signed and witnessed correctly?

Wills must be signed by the person making the will and the signature must be witnessed by two people. The two witnesses must sign a document stating that they witnessed the signature of the person who made the will. The witnesses must sign that document before the person who made the will dies. The witnesses don't have to sign at the same time as the person making the will, but if they wait until after death it is too late. Lawyers bring witnesses into the will signing and have everybody sign at the same time. They never screw that part up. Non-lawyers who write their own wills or get wills off the Internet often fail to have the will properly witnessed. That makes the will scrap paper.

(Lawyer usually attach to a will something called a "self-proving affidavit." That is a document that makes the will easier to get admitted to probate, but it is not required to make the will valid.)

There are no exceptions to the rule about witnesses. You can't get around it by doing a handwritten will. In addition, changes to a will -- called codicils -- must also be witnessed. That means you can't make additions and deletions on your will unless each change is also witnessed. If you are going to make changes, you should probably just make a new will.

If a will is not signed and witnessed, it is invalid. It is invalid even if you can prove that the will accurately expresses the wishes of the person who wrote it. If the will is invalid, the person who wrote the will is considered to have died without a will. I have written previously about what happens when you die without a will. You might want to look at that post.

Has the will been revoked?

Most wills begin with the line, "This is my last will and I revoke all prior wills made by me." A will is normally revoked by a subsequent will. A will may also be revoked by being burned, torn, canceled, obliterated or destroyed by the person who made it. If a person dies and his will can't be found there is a presumption that it was destroyed.

A will is revoked by a subsequent marriage if the new spouse outlives the person who made the will. If you have a will and get married, you should write a new one.

If you receive a notice from the court that the will of a relative has been admitted to probate, and you believe that it was not signed correctly, or that it had been revoked, you can challenge the will by filing your challenge with the court. This is not a job for amateurs. You will need to retain a probate lawyer to evaluate the challenge and prepare the court filing for you.

Next Post: Challenging a will for lack of capacity or undue influence.