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If you face unresolved matters about the validity of a will, you may feel emotionally drained. Feelings can range from sadness to anger about the injustices happening in your family. Disputes between loved ones take over your life by damaging the relationships you value most. Let’s look at valid reasons to contest a will. 

Contest a Will

Look for grounds to sue in civil litigation court. Your reasons to sue for justice must have valid backing. Your valid reasons are considered your “grounds.” There are three ways to motivate a court to declare a will invalid. You must show that the person writing the will (the testator) met one of these conditions: 

  • Testamentary Capacity: Lacked mental capacity to understand writing the will 
  • Undue Influence: Testator faced pressure to change the will 
  • Failed to meet state regulations while writing the will

Probating a Will

If you have grounds to dispute a will, it is best to bring these issues up to the probate court before the will is probated. Once the probate judge declares the will as “probated,” it is considered valid.  If you can prove the will is invalid before it is probated, you may not need to contest the will. 

Right after the testator’s death, the family bringing the will forward to probate court must establish its validity by a preponderance of evidence for the judge to probate the will. However, if you argue against the presented will, you must show clear and convincing evidence that the will is invalid. Arguing against a will requires a much higher standard of proof. (1)

If you can prove the will’s invalidity, the judge will not probate the will. The judge will then consider any other valid wills. However, if every will gets thrown out and there is no valid will, the entire estate will face intestate law. 

Intestate Law

Intestate law determines who the beneficiaries of an estate are through a complex judicial process mandated by North Carolina law. You may wonder who gets what in the estate without a will. According to the law of intestate succession, the order of priority goes:

  • Spouse. If the testator had a husband or wife, they are the first person in the line of succession. However, they aren’t entitled to everything.
  • Lineal Descendants: Any children, grandchildren, or remote descendants the testator had share priority with the spouse to some degree.
  • Parents. If your testator’s mother and/or father are still alive, they are the third priority. Parents may also share some priority with the spouse if there are no descendants.
  • Siblings. After the testator’s parents are their brothers and sisters. 
  • Siblings Lineal Descendants: The testator’s siblings’ children and grandchildren (nieces and nephews and grand-nieces and grand-nephews) come after their parents (your loved one’s brothers and sisters)
  • Grandparents. Last in line are the testator’s grandmother and grandfather if they are still alive, or their descendants if not.

Contesting A Probated Will

Once the will has gone through probate, you would need to sue to contest a will. According to the Nevada Law Journal, The most common grounds for will contests are:

  • Undue influence
  • Testamentary capacity
  • Fraud

Contesting a will can involve high costs, including attorney and court fees. Often, contesting a will overturns the testator’s intent and prevents justice and closure for families. Choosing to go against family members or loved ones to contest a will involves high stakes emotional fallout and stress. 

If you are a disgruntled family member who did not receive your desired inheritance, it is unlikely you will win a case against the will unless you can prove the will is invalid. Courts will not change or overturn a will because you find it unfair. 

If you go forward with a will contest but have “frivolous or groundless objections” you can end up paying all of the costs of the court and attorney fees.  

Consulting with an attorney about whether you have grounds and wish to move forward is wise before making regrettable decisions to sue. If your case reaches a courtroom or has repeated appeals, the cost may also drain the estate assets. 

Can I Successfully Contest a Will?

In the United States, research finds that between 0.5% and 3% of wills face a contest. Despite that small percentage, given the millions of American wills probated every year, a substantial number of will contests occur. (2)

It is unlikely that you will win a will contest unless you have a preponderance of clear and convincing evidence to overturn a will. As long as the testator properly executed the will, the testator is of sound mind, and there is no undue influence or fraud; overturning the will is not likely.

We Can Help

Consult with an estate litigation attorney to consider how to resolve and settle any estate or will complaints. Our attorneys at Hopler, Wilms, and Hanna understand that there are more options than the courtroom to handle will contests and other estate disputes. We work through negotiations behind the scenes to reduce costs for you, both emotional and monetary. 

Over the years, we have seen numerous estate and trust disputes while witnessing the toll it can have on a family. We have represented heirs, executors, trustees, and other beneficiaries in cases to contest a will. A lot is at stake. Contact us today for a free initial consultation and find out how we can help you move forward. 

 

  1. https://scholars.law.unlv.edu/cgi/viewcontent.cgi?article=1525&context=nlj 
  2. https://en.wikipedia.org/wiki/Will_contest#cite_note-Rynzar2014-4 
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