In today’s article, we’re going to discuss how to contest a will.
We’ll also cover some of the key legal reasons to contest a will and how the caveat process works.
So how do will contests work?
First, let’s cover terminology, when you file a legal objection to a will, we call that a “caveat”.
This caveat must identify all of the legal objections to the validity of the will.
In a caveat you are asking the court overturn the will in its entirety – there is typically not much middle ground to modify the will.
The caveat must tell the court the legal reasons why the will should be declared invalid.
Common Legal Objections To A Will
What are some common legal objections to a will?
- Absence of formalities necessary when the will was signed.
- The person who signed the will lacked testamentary capacity.
- There was fraud in signing the will.
- Undue influence was exerted over the person who made the will.
- There was a mistake when the will was filed.
- There was a forgery of signatures on the will.
- The will was later revoked.
There are other legal grounds for caveat, of course, but hopefully these seven give you an idea of some of the most common ones.
Each of these grounds for objection have several factors that must be proven in order to win on that objection.
As you can imagine, it get complicated very quickly.
How Do Will Contest Cases Work?
How do will contest cases work?
Filing the caveat kicks off a legal dispute in probate court, and that dispute has several stages.
First, When drafting the caveat, it is important make sure you identify all of the legal grounds that apply. If you leave one out, you risk losing it unless the caveat is later amended.
When the caveat is filed, it is ok to simply state objections even if you do not yet have the evidence to support them.
After the caveat is filed, the case will enter the discovery phase where each side has the opportunity to gather evidence to prove their case.
During discovery and after it ends, it is common for motions to be filed by either side asking the court to take an action, such as excluding evidence or granting summary judgment.
It is also very common for mediation to be required during that time.
After discovery ends, the case will be scheduled for a trial where each party will present their case and evidence, and the court will determine whether the will is valid or invalid.
As a result, it is vitally important that evidence is gathered to support the allegations made in the caveat. Without evidence, it is very unlikely that the will contest will be unsuccessful.
This is a complex situation, and I do not recommend that you try to handle a will contest without a qualified probate attorney on your side.
Considering Contesting A Will?
Everything discussed in this article is for general information and is not legal advice – for specific information about your situation, please contact our office at (770) 920-6030 to set up a consultation.