Do you know how to contest a will? The death of a loved one is always a tragic and stressful event. Sometimes, your loved ones will can exacerbate an already-traumatic event. When money and assets become involved, someone may choose to contest a will. And, unfortunately, occasions arise when contesting a will is the only valid option. In this post, Louisiana successions attorney Joseph Greenwald, Jr. will answer some of your questions about how to contest a will.
What is a Will?
We all generally know what a last will and testament is, but it’s helpful to define it in the legal sense.
A last will and testament is a legal document that parcels out the pieces of a person’s estate to their intended beneficiaries. There are plenty of guidelines and rules that govern how and what you can bequeath in a will.
This is why it’s important to work with an attorney who handles wills while you are writing one. An attorney can help ensure that your last will and testament distributes your assets in the way you want, and also in a way that follows your state guidelines.
But even if you work with an attorney to create your will, beneficiaries can still contest a will.
What Does Contesting A Will Mean?
Contesting a will means challenging its terms in probate court.
The probate process (or successions in Louisiana) is a judicial process where a court oversees the distribution of assets. This process also means that some people can contest a will that comes up in probate court. You can do this if you aren’t satisfied with the terms of a will. This often happens with sibling rivalries, or disagreements between relatives after the death of a loved one.
For instance, if a parent dies and chooses to leave one sibling significantly more money than the other sibling, the second sibling may choose to contest the will.
However, winning a will contest is not easy. You will almost certainly need the help of a probate attorney. It is also often expensive and lengthy. (See: How Long Does Probate Take?) Further, you can’t just contest a will because you feel like it – only certain people can contest a will.
Who Can Contest A Will?
You must have the standing to contest a will—not just anyone can do it.
The following people have the standing to contest a will:
- Beneficiaries already named in the will
- Beneficiaries named in a previous will who was written out of the most recent will
- Beneficiaries named in a previous will whose assets decreased significantly in the newest will
- Anyone will do not name that the law would allow inheriting if the will didn’t exist. This usually means a spouse or child who is not in the will.
These people have the ability to contest a will. However, just because they can contest the will does not mean they will be successful.
Why Would You Contest a Will?
We talked about who can contest a will. Now let’s talk about why someone might contest a will.
Just like not everyone can contest every will, you can’t contest a will just because you want to. You have to have some legal reason. Legal reasons for contesting a will include the following:
- The testator was not mentally competent: The person who created the will must be mentally sound when doing so. This prevents malicious relatives from taking advantage of people who may not be fully mentally competent, like someone with Alzheimer’s. If the testator was not mentally sound, and someone convinces them to bequeath their assets in a certain way, the people we named above can contest the will.
- There is a more recent version of the will: When you modify a will, the new will revokes all previous versions of your will. Only the most recent version of the will is valid, so long as it is not legally invalid for other reasons.
- The will is incomplete: There are certain elements of a will that must be present. The testator must sign it, for instance, and name beneficiaries. If they do not sign it or leave parts of the will blank, someone may choose to contest the will.
- The will is not legally valid: To be legally valid, a will must follow certain rules. These rules are:
- Two witnesses must sign the will.
- If the testator modifies the will, two witnesses need to sign the new will.
- Louisiana is a community property state. In this state, you cannot distribute any assets you acquire during marriage if your spouse is still alive. So, a man cannot leave a car he bought while married to his wife to his children if his wife is still alive.
- No one can trick the testator into signing the will.
- Forged and fraudulent wills are obviously invalid as well. If the will is not legally valid, it is vulnerable to contest.
How Do I Contest A Will?
Contesting a will often involve enlisting the help of an attorney. Attorney fees can be expensive; however, having an attorney’s help will certainly make your claim easier.
Remember that contesting a will may require you to go through the same processes as other civil trials. You may have to sit for a deposition, or you may have to submit evidence.
When you contest a will, the odds are against you. However, a will contest can drag out the probate process for months and months. For this reason, sometimes beneficiaries may agree to a settlement.
This will likely be less than what you would get in a successful contest, but it will save you legal fees and a lengthy probate process. In will contests between family, it can also prevent a strained or frayed relationship.
Contact the Greenwald Law Firm
Joseph Greenwald, Jr. is an attorney with extensive experience in Louisiana successions. If you have questions about the probate process or about contesting a will, give us a call at the Greenwald Law Firm at 318-219-7867. You can also leave us a message on our website.