When a parent passes away, it is an extremely difficult time that sometimes brings out the best or the worst in a family.  Sometimes it can cause further divides between siblings, and money and possessions often have a special way of fueling the fire of existing issues.  If a sibling or another person named in the Will decides to contest the Will, it is important to know how and when a Will can be overturned.  

Family Expectations

Family members can feel hurt if they don’t receive what they were expecting or believe was their fair share.  A contested Will is expensive and time-consuming and just because a family member contests the Will does not mean it will be overturned. In most cases, only spouses, children or people who are written in the Will can contest the Will. This has to be done when one of those people notifies the court during the probate process and the contested Will proceedings will begin in court.  A Will cannot be overturned or contested just because someone is upset or believes a parent said something differently before they passed.  It is a formal legal proceeding that will take place in court where there is a valid legal question about the document or the process under which it was made.

Proper Will Format

A Will is presumed to be valid by the probate court if it is in the proper format.  A Will or an amendment to a Will (also know as a codicil) can only be overturned for very specific legal reasons.  The four main reasons for a contested Will are that there was a problem with how the Will was signed and/or witnessed, there is reason to believe the person who made the Will did not have the proper mental capacity, that there was fraud in making the Will, or that the person was under the influence of another person.

States have laws as to how a Will is to be signed, called a ceremony, usually with two witnesses taking an oath and signing, thus meeting all the requirements of a written Will.  If this happened properly there is no issue unless a required signature is missing, for example. One of the most common issues in a Will contest is whether the person had the proper mental (also called testamentary) capacity to sign the Will.  This doesn’t mean that the person had to have proven they are functioning at 100% mental capacity, it is usually a lower standard. For example, it is possible that a person could be in the early stages of dementia, but knows her assets, who she wants them given to and knows the effect of the Will and therefore has the mental capacity to make a Will. Fraud Will also overturn a Will, for example, if a person signs a document that they were told and believed to be a traffic ticket but it was really a Will. Finally, a Will can be invalid if a person was overly influenced to sign a Will under the control and insistence of another. This is common with the elderly, who may unwittingly grow to trust someone who may have ulterior motives.

Will Invalidation

If the court agrees that the whole Will (or amendment) or part of the Will is invalid, a few things can happen; it can be thrown out in part to or whole. If there is an earlier Will, that Will may be reinstated or the assets will be transferred according to the state’s intestacy (also known as inheritance) laws. The court will look to the provable facts of the situation to make the best determination to justly divide the assets according to the law.  In most cases, Wills are upheld in court and family disagreements tend to lessen with time.

Marinaccio Law serves clients in business disputes and transactions, civil litigation,estate planning and probate and trust administration, landlord tenant matters, and real estate litigation and transactions. Whether it a dispute on a real estate matter, setting up a small business, filing for bankruptcy, or creating an estate plan, Marinaccio Law will provide individual attention in helping to achieve its clients’ goals. Give us a call today and we’ll discuss the best options for you and your specific situation. Phone: (818) 839-5220 or visit our website at http://www.marinacciolaw.com .