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.
Contesting a will
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.
What is a will contest?
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.
How to contest a will
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:
- How the will is signed and witnessed. A problem with execution can lead to a will being declared invalid. Execution is all about how the will is signed and witnessed. If your parent signed it and there are two witnesses and all of your state’s requirements are met, there is no problem. If the signature is not your parent’s or a witness didn’t actually sign it, then there could be questions about its validity.
- Mental capacity at time of will signing. One of the most commonly argued reasons for a will contest is that the testator (person signing the will) did not have testamentary capacity, sometimes called mental capacity. Testamentary capacity does not mean your parent was 100% mentally together. In most states the standard is a bit lower. If your parent understood his assets and what he had to give away, if he understood who his heirs and beneficiaries were, and if he understood the effect of the will, then he had the mental capacity to make the will. Even people in the early stages of dementia can meet this standard.
- Will fraud. If your parent signed the will as the result of fraud, it is not a valid will. An example of fraud would be someone handing her a document, assuring her it is a health care proxy or real estate contract and having her sign it when it was actually the will.
- Under the influence. A will is also invalid if the testator was unduly influenced at the time of signing. A common example of this is a full-time caretaker who has taken complete control of all of an elderly parent’s assets, decisions and day-to-day life, and has become completely in charge of him or her, influencing the elderly parent to agree to just about anything, including signing a will that might not be what the parent really wants.
What happens after a will is 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.
Find out more about Last Wills