Contesting a will and achieving a favorable outcome requires a methodical approach, understanding of the legal grounds for contesting, and a strong legal strategy. If you’re considering contesting a will, follow these steps:
Determine Your Eligibility
Before you can contest a will, you must typically have a legitimate interest in the deceased’s estate. This might mean you’re:
- A beneficiary named in the will
- Someone left out of the will but who expected to inherit (e.g., a child or spouse)
- A creditor or someone else with a valid claim against the estate
Know the Grounds for Contesting
- Lack of Testamentary Capacity: Argue that the deceased didn’t have the mental capacity to understand what they were doing when they made the will.
- Undue Influence: Argue that someone manipulated or coerced the deceased into making the will.
- Fraud: Argue that the will is fraudulent or that the deceased was deceived when making it.
- Procedural Issues: Argue that the will wasn’t executed correctly, e.g., it wasn’t signed or witnessed as required by law.
- Provision for Family and Dependents: In some jurisdictions, close family members and dependents can contest a will if it doesn’t provide adequately for them.
Collect all documents related to the will, including previous versions, correspondence about the will, and any evidence supporting your claim (e.g., medical records or witness statements).
Consult a Solicitor
It’s vital to consult with a lawyer who specializes in wills and estates. They can provide advice on whether you have a strong case and guide you through the legal process.
Many courts encourage or require parties to try mediation before proceeding with litigation. Mediation can be a less expensive and less adversarial way to resolve disputes.
File a Claim
If you can’t resolve the matter through mediation, your solicitor will help you file a claim in court to contest the will.
Prepare for Court
If your case goes to trial, your solicitor will help you prepare. This might include:
- Gathering and presenting evidence
- Bringing in expert witnesses (e.g., to testify about the deceased’s mental capacity)
- Making legal arguments about why the will should be overturned or amended
Be aware of potential risks, such as adverse cost orders where you might have to pay the other side’s legal costs if you lose.
Stay Open to Settlement
Many will disputes are resolved before they go to trial. Be prepared to negotiate and potentially compromise to reach a settlement.
Review the Outcome and Next Steps
If you’re successful in contesting the will, the court may invalidate the entire will or parts of it. Depending on jurisdiction, the estate may then be distributed according to a previous will or the rules of intestacy (i.e., as if there was no will).
Remember, the process and specific legal requirements can vary significantly based on jurisdiction. Always seek legal advice specific to your situation and location.