The death of a parent is one of the most traumatic events a person can experience. People experience a wealth of emotions during this time, as they have to come to terms with the fact that their parent is no longer with them, they also have to contend with making arrangements for the funeral, and they also have the added stress of filing their parent’s last will and testament with the probate court. Many of the things that must get done are difficult and time consuming when a person is not grieving over the loss of their parent, however for many people, their loss and grief is only compounded due to a sibling’s decision to contest the will.
The Last Will
Most people are under the assumption that the last will and testament means exactly what it implies. They believe that when a person places their final wishes and desires about their final arrangements, and the distribution of their assets after they have passed away is the final word. Oftentimes people find out during their time of grief that is not the case, as they have a sibling or several siblings who decide to contest the will.
Most people believe that it is the responsible thing to leave a last will and testament behind to make life a little easier on their loved ones after they have passed on. Some people choose an attorney to draft their will and take care of the filing, while there are others who choose to purchase a will kit they can complete themselves. Many people who opt to draft their own will often run into problems later on because the requirements that are determined by the last will and testament laws in their state have not been met.
It is important to note, that every state has its own unique set of requirements that must be met in a will. If those requirements are not met, the will cannot be enforced. There are a number of requirements that are the same for every state. Some of those requirements include elements like whether or not the person was of sound mind when their will was drafted. This simply means that their mental state was such that they had a full understanding of what they owned at the time, their relationship to those they designated as heirs, and what they planned to leave each person. This is known as testamentary capacity.
The laws in every state also require that the signature of the will be signed by the person who made it. This is extremely important, because a missing signature, or a will that has a questionable signature could be rendered invalid. Another general requirement in most states requires that there are at least two witnesses who have no viable interest in the will.
Leaving the Door Open
In many cases, a sibling might decide to contest a will when they believe that the elements required by their state have not been met. Sometimes a sibling will accuse another sibling of will fraud. They may assert that a sibling gave their parents a document and told them that they were signing something relating to their bank account, or a bill, when what they actually got them to sign was their last will and testament. In other cases, a sibling’s contest wills because they believe that their parent was unduly influenced by another sibling at the time the will was signed. The premise behind this type of claim is that the elderly parent was under the complete control of another person due to their inability to care for themselves. In these types of cases the general assertion is that because their sibling had a heavy influence of their parent, and that influence could have impacted the parent to the point of signing a will that they really had no intention of signing.
When A Will is Contested
Tensions run high when people become faced with the prospect that the will of a parent is being contested by one of their siblings. It is important for people who find themselves in this situation to take a deep breath and remain calm during this process. People should note that if their sibling decides to contest their parent’s will, they can only do so during the probate process. During this time a valid legal question concerning the will, or the method by which it was drafted is presented. Generally, there are four reasons the court will allow a will to be contested. These reasons include: The mental capacity of the person at the time the will was signed, undue influence, something nefarious about the manner by which the will was witnessed and signed and will fraud.
If a sibling actually moves forward with the process of contesting a will and the probate court determines that the codicil or the will is not valid in whole or in part, there are a few things that could happen. If there is a previous will that has been filed, the court could decide to discard the whole codicil or will. If the case is that there is not the existence of a prior will, the court could decide to distribute the parent’s assets based on the intestacy laws of the state. The court has the authority to interpret how much of the codicil or will to uphold and to distribute the assets. There are a lot of people who choose to forgo an attorney when they are dealing with probate issues, however when a will is being contested, the counsel of an attorney is important. Probate litigation attorneys specialize in these types of cases. They can help guide their clients through the legal process by ensuring that all documentation and other necessary filings are entered into the court in a timely manner. It should also be noted, that in many cases, once an attorney becomes involved in these types of cases, oftentimes the contested party make the decision to end the process.