Challenging a Will: The Basics of Estate Litigation
posted in: Estate Litigation
Proper estate planning can ease the transition following a loved one’s passing. Sometimes, however, the deceased can make mistakes in their Will or leave behind questions as to what they really wanted to happen to their estate. In such cases, someone may want to challenge the Will or how it is being executed.
At KMSC, we understand the emotional difficulties that accompany estate litigation and have the experience to guide you through legally complex disputes. This blog will discuss the basics of estate litigation and some of the common issues that often pop up when someone challenges a Will. Please note that this blog is for informational purposes only and is not a substitute for legal advice. Contact the team at KMSC Law to discuss any estate litigation questions you may have.
What Is Estate Litigation?
After a death, it is sometimes necessary to contest or seek the clarification of a Will. Alternatively, if there is no Will, it may be necessary to legally challenge the Estate. These situations are known as estate litigation. Some common estate litigation issues include:
- Validity: The Will’s technical validity—for example, missing signatures, unclear instructions, or inconsistent provisions.
- Interpretation: The proper interpretation of the Will or a specific provision of the Will.
- Mismanagement: The mismanagement of the Will by the executor.
- Maintenance Claims: Maintenance claims against the Estate by parties who have been disinherited or cut out of a Will.
- Mental Capacity: Concerns regarding the mental capacity of the deceased when they signed the Will.
- Undue Influence: Challenges that one party unduly influenced the deceased to alter the Will to the party’s benefit.
Having introduced some common estate litigation issues, we can now discuss mental capacity, undue influence, and the unfair disbursement of assets in greater depth.
When someone drafts their Will, they must understand the nature of what they are saying. More specifically, they must understand how much assets they are leaving and to whom. This requirement is why the testator must be in their right mind when they sign their Will. If some disorder of the mind, such as Alzheimer’s or Dementia, alters the testator’s affections or impedes their decision-making, thus causing them to dispose of their property in a way they would not have had their mind been sound, the Will may be deemed invalid.
Undue influence, which may occur where the testator is pressured to sign a Will that does not necessarily express their true wishes, may also invalidate a Will. To invalidate a Will, however, there must be evidence that the party effectively coerced the testator, with the threat of force or fear, to alter the Will for the coercing party’s benefit. In other words, undue influence will only be present when the testator has been made to do something they did not wish to do. Thus, a relationship of affection between the testator and another party that results in the party receiving more assets, or the testator leaving assets to a party on the party’s request, does not amount to undue influence. If you believe someone pressured a deceased to change their Will to that person’s benefit, you may have grounds to challenge the Will.
Unfair Disbursement of Assets and Maintenance Claims
To an extent, we have the freedom to leave our assets to whomever we choose when we pass. That being said, we also owe certain family members legal and moral obligations that we must satisfy in our Wills. For example, if a person’s otherwise valid Will left their assets to their two children but excluded their spouse or common-law partner, the spouse or partner may have grounds to sue the Estate for proper maintenance.
If you believe a deceased’s Will is subject to one of the problems above, contact KMSC Law today. There are limited timeframes for contesting a Will, so you must act quickly if you want to challenge an Estate. Furthermore, if you are the beneficiary or Executor of an Estate and someone is challenging the Will, KMSC can help you as well. Though Covid-19 may be keeping you at home, we have the video and teleconferencing abilities to discuss your legal issues remotely.