Will Contests: Who May Bring a Claim?

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Will Contests: Who May Bring a Claim?

Will contests are one of many forms of probate litigation. The nuances involved can be complex. An experienced probate litigation attorney at Burandt, Adamski & Feichthaler, PL in Cape Coral, FL, will be able to walk you through the process and be your advocate.

Who May Bring a Claim?

To contest a will, you must show that you have standing to do so, as well as a claim that the will could be invalid. Someone who has standing is a party who suffers a current or possible future impairment or injury if the will is upheld as valid. This includes anyone who has something to gain if:

  • The current will is held invalid and a prior will is revived
  • The will is denied probate, thus invoking more property into testamentary trusts
  • The deceased had passed away intestate (without a will)

When someone dies without a will, certain relatives are automatically designated as heirs. These relatives include the spouse, children, grandchildren, parents, siblings and grandparents of the deceased.

Other individuals who may bring a will contest include:

  • The spouse, who is claiming more than his or her elective share
  • The state, who would stand to take everything if an individual died intestate and without heirs
  • The administrator or executor of the current or a prior will
  • Individuals who have contracts with the deceased that are contrary to the will
  • Assignees of heirs or beneficiaries
  • Creditors

On What Grounds May a Claim be Made?

Even if you have standing to bring a claim, you must also be able to show that the will that was admitted to probate may be invalid. There are several grounds on which to claim invalidity:

  • The will failed to meet all formalities: to create a valid will, the drafter of the will must meet all formal requirements. Each state has its own formalities, but most agree that a will must be properly signed, attested to and witnessed.
  • The testator lacked the mental capacity to create a will: the validity of a will depends on the mental capacity of the testator (the person who wrote the will and has died) at the time of the creation of the will. The testator must have known of his heirs, known the nature and extent of his estate and been capable of creating a will that rationally distributed his estate. There is a presumption that the testator had capacity, which places the burden of proving incapacity upon the challenger of the will.
  • The will was revoked by the testator: a will can be revoked by an act of the testator (such as burning it or ripping it into pieces); by the creation of a new will that properly states revocation of a previous will; or by a change in circumstance prior to the testator's death (such as divorce).
  • The testator was subject to undue influence: another method of challenging the validity of a will is to claim that the testator was subject to undue influence. Most states have not yet fully defined undue influence, but all have identified certain elements that must be shown. It is unnecessary for the individual who allegedly unduly influenced the testator to be a direct beneficiary under the will.
  • Contact a Probate Litigation Attorney

    For advice and information on probate litigation and contesting a will, contact Burandt, Adamski & Feichthaler, PL in Cape Coral, FL, today to schedule a consultation with a knowledgeable attorney who can take the worry out of estate administration.

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