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Will Contests and Trust Contests

A Will or Trust contest is a legal action to contest the validity of all or part of a Will/Trust or the validity of the revocation of all or part of a Will/Trust. 

Who Can Contest a Will or Trust?

A protesting party may only contest a Will/Trust if he or she falls within one of two categories. First, those mentioned in the Will/Trust, known as the named beneficiaries, may formally challenge it. This includes individuals named in a prior document but omitted from the current document. Alternatively, if the challenger stands to inherit according to laws of intestacy (such as a family member), but is not named in the Will/Trust, or is expressly disinherited, he or she may seek to contest.

Grounds to Contest

In order to successfully contest a Will/Trust, the protesting party must prove that the Will/Trust is invalid. There are several scenarios under which a Will/Trust may be voided, including but not limited to:

  • Lack of testamentary capacity – Generally, the Testator/Trustor must understand the nature of their assets, their family connections and that the legal documents they are about to sign will transfer their assets to the individuals named in the document upon their death. If the Testator/Trustor is shown to have been in an incapacitated or otherwise impaired mental state at the time the Will/Trust was executed, it may be considered void.
  • Fraud, duress, mistake or undue influence – A Will/Trust, a portion of the document, or a revocation of the document is void if the execution was procured by fraud, duress, mistake or undue influence. An example would be if the Testator/Trustor altered his or her Will under the threat of force or other persuasion or was deliberately misled by a third party.
  • Will/Trust does not follow procedure - A document may be contested if it was signed in the absence of witnesses, was not signed by the Testator, or is otherwise not executed according to the law.

Time Limitations

There are very critical time limits involved in estate matters and unless the protesting party preserves his or her rights, they may waive them unknowingly. There are various ways the estate can limit the time available for a protesting party to file a claim. For example, if they are served formal notice by the estate, they may only have a 20 day window to file a Will contest or Trust contest.

Whether you are filing a contest or a Personal Representative or Trustee defending against a contest, an experienced attorney can review the facts of the case, determine the limitations of the parties and develop a litigation plan to ensure that the intent of the creator is carried out.



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