When you write your last will and testament, that comes with the knowledge and expectation that your loved ones will follow your wishes. However, there is always the chance that someone will attempt to contest your will in court, bringing the process of probate to a grinding halt and forcing a lengthy legal contest. But what happens when someone contests your last will and testament, and what can you do to prevent it?
What Does it Mean to Contest A Will?
In simple terms, a will contest is when someone claims that a last will and testament is not valid, for one reason or another. They may, for example, claim that the will is fraudulent, or was created under duress, making the document invalid. They may also claim that the person who created the will did not have the mental capacity to create a valid will. Alternatively, they may assert that a more recent version of the will exists, which should overrule the will that was initially submitted for probate.
Why Would Someone Contest Your Will?
In many cases, a will contest is done out of legitimate concern that the will is somehow illegal, due to one of the potential defects listed above. In other cases, however, people will contest a will for entirely self-serving reasons, believing they will be able to get more out of an inheritance if they can successfully challenge the will in court. This latter issue is more of a concern for relatives who were excluded from the will, or for those who received a much smaller inheritance than they might otherwise be entitled to.
What Happens When Someone Contests A Will?
When someone contests a will, the process of probating the estate stops until the contest is resolved. The court hears evidence on the alleged problems with the will, and makes a determination as to whether claims about the will’s validity (or lack thereof) are based in fact. If the court determines the will was not valid for one reason or another, the estate falls into intestacy, effectively being treated as though the person died without a will. This can dramatically change how property is distributed.
What Can You Do to Prevent Your Will From Being Contested?
One of the best ways to reduce the risk that someone will contest your will is to include a “no-contest” clause in your will. This clause will make it so that anyone who unsuccessfully attempts a will contest is disinherited, meaning they will lose anything they might otherwise have gotten. While this will not stop all potential will contests, it can at least dissuade those who might contest your will under the hopes of getting a better inheritance. However, a will, is only one part of a more complete estate plan, and you should speak to an experienced estate lawyer to know how best to protect your estate from potential legal issues.
The estate planning attorneys at David J. Lorber & Associates, PLLC will work with you to handle all of your trust and estate law needs, including assisting in estate law litigation. For comprehensive estate and elder law services in New York, call David J. Lorber & Associates, PLLC at (631) 750-0900 or contact us online to schedule a free consultation at our Setauket office.
Recent Comments