While most wills are upheld in courts, there are four main legal reasons that a will may be overturned.
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updated September 1, 2023 · 4min read
The death of a parent is a difficult time, and this tremendous loss can deepen rifts and cause problems among siblings. Money often rears its ugly head as an issue. If your sibling decides to contest your parent’s will, it’s important to understand when and how a will can be overturned.
A last will is a legal document that isn’t easily tossed aside.
Just because your sibling decides to contest the will doesn’t mean they are going to actually overturn the will.
Some siblings threaten a will contest when they feel slighted or hurt and don’t ever follow through. Contesting a will is expensive and time-consuming.
Under probate law, wills can only be contested by spouses, children or people who are mentioned in the will or a previous will. When one of these people notifies the court that they believe there is a problem with the will, a will contest begins. Your sibling can’t have the will overturned just because he feels left out, it seems unfair, or because your parent verbally said they would do something else in the will.
A last will and testament can only be contested during the probate process when there is a valid legal question about the document or process under which it was created.
A last will and testament is presumed to be valid by the probate court if it is in the proper format. A will or a codicil to a will (an amendment made to a will after it has been signed) can only be contested for very specific legal reasons and the process begins when an interested person notifies the court.
There are only four main legal reasons a will can be contested:
If your sibling actually contests the will or codicil and the court agrees that the will or codicil is invalid, or that parts of it are invalid, there are several outcomes. The entire will or codicil can be thrown out. If there is an earlier will in existence, that will could be put into place instead. If there is no other will, assets could be distributed by the court according to state intestacy laws, rules applied to divide an estate when there is no will. Part of the will or codicil could be upheld, leaving the court to interpret how the rest of the estate should be distributed.
When a sibling decides to contest a will sparks fly, but when it comes down to brass tacks, the court looks at all of the facts in the case and makes a decision based on what is provable. Most wills are upheld, and most sibling disagreements after a parent’s death cool down with time.
by Brette Sember, J.D.
Brette Sember, J.D., practiced law in New York, including divorce, mediation, family law, adoption, probate and estat...
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