January 5

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Can You Challenge A Will?

By Mac McLean

January 5, 2021


When Leona Helmsley died in 2007, she cut all but two of her grandchildren out of her will and set aside $3 million to steam clean her crypt every year. The billionaire hotel heiress also left $12 million to an eight-year-old Dog named Trouble that had been at her side for most of its life.

Trouble’s inheritance, which a judge later cut down to $2 million, let the dog continue to live a life of luxury in a Sarasota hotel with a bodyguard and $1,200 worth of dog food each year. It also prompted people across the country to ask, “Can you challenge a will?”

And the answer is yes. Anyone can challenge a will during the probate process if they have sufficient standing and a legal reason to do so. The process can be very tricky, though, so it’s essential to have an estate planning attorney who can help you navigate the system and determine if it’s worth the effort.

Sign up for a free estate planning workshop from PlanningCommunity.org today so you can learn more about how wills work and meet an attorney who could help you file a claim. This webinar could help you convey your last wishes – even if you want your dog to get more money than your kids – in a way that will stand up in court.

Challenge a will

Ninety-nine percent of all wills clear the probate process without any problems. Clear communication regarding the individual’s last wishes and the fact only a handful of people have the legal standing to challenge a will are two reasons behind this statistic.

While the law varies from state to state, typically, only the testator’s spouse, his or her children, or someone named as an heir in an earlier version of the testator’s Last Will and Testament can file a claim. If you fall into one of these categories, you’ll need to prove one of the following happened:

  • Mental capacity: Was the person writing the will truly “of sound mind and body” when he or she left everything to the mail carrier? If you think the testator lacked the mental capacity to dole out their estate fairly, then you can challenge the will.
  • Undue influence: It’s also possible to argue someone, i.e., a home health care worker, forced the testator to include them in the will by withholding care or taking advantage of the testator at a vulnerable moment.
  • Fraud: What? People don’t typically sign everything they own over to the ABC Cable Company when they set up high-speed Internet service? There’s undue influence and then there’s fraud.
  • Style and formatting: Does the will contain every phrase – “last will and testament,” a listing of heirs, and a listing of assets – your state requires? Did you need two or three witnesses? And, what about a notary? Only an attorney can understand this argument and make it sing.
  • A later Last Will and Testament: Sometimes, the document in the court’s hands isn’t the testator’s last will and testament. If you have a later version of a will – particularly if it was legally signed and meets the criteria above – then that’s the version the judge will follow.

Even if you don’t plan to file a claim, knowing how to challenge a will is important because it can help you write your own and make sure your last wishes are followed. Attending an estate planning workshop will help you with this process as well.

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