A will is a document that sets out how a person's estate gets dispersed upon her death. Typically a will must be typed, signed and witnessed by two people who are not named as beneficiaries to be legal. There have to be legitimate reasons for invalidating a will before a court will set one aside. Two conditions that allow a will to be invalidated are if it can be proved that fraud was involved in the making of the will or that there was undue influence on the deceased during the making of the will. Both have to be proved in a court of law before a will can be invalidated.
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Check to make sure you have legal standing according to the court. A person is considered to have legal standing if he inherits under the will, would be a beneficiary of any trust set up by the will, or if he would have inherited if there was no will. Next of kin, such as spouses or children, fall under that category.
File a motion contesting the will with the probate court via a qualified probate attorney. The attorney can assist you with the proper paperwork and forms.
Produce copies or show proof of any prior wills or estate plans to the court that show that original intentions existed that are different than the contested will. This includes prior conversations between the deceased and any witnesses that can be called to testify.
Show evidence of fraud, defined as a wilful intent to deceive, to the court. You must show that the will would read differently if the fraud had not occurred and that the deceased relied on the lie when making her decisions about the will. Verification of the fraud is needed, and it must be exposed that the person committing the fraud knew he was telling a lie or making a misrepresentation at the time of the fraud.
Show evidence of undue influence by the use of physical or psychological force or pressure on the deceased by another person to the court. The person using undue influence must have benefited from this use of force in a way that would not have existed without the use of force.
Show evidence that the deceased was unable, due to her health or mental state, to resist this force or pressure. The court looks at the deceased's state of mind at the time of the signing of the will as much as the actions of the person accused of using undue influence.
Tips and warnings
- After the proof of fraud and/or undue influence has been presented to the court, the court will suspend action on the contested will and investigate the claim. It will then decide if it feels the evidence is credible enough to reasonably justify invalidating the will. If the court decides yes, then the representative for the contested will must show evidence that supports it.
- Be sure you still want to take the risk of pursuing the claim if the will contains a clause that penalises anyone who contests the will. Depending on the state, there may be laws in place that will make the clause unenforceable if there is just cause for the will to be contested, but there is always a risk that just cause will not be found.
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