Contesting a Will
When a person or persons object to the validity of a will it is often referred to as a will contest or Contesting a Will. The usual grounds for a will contest are that the testator(the person who wrote the will) lacked testamentary capacity; there was a lack of due execution of the will under the statutes; that there was an undue influence on the testator; there was fraud, or there was duress.
What is Probate?
Probate is the legal process of dealing with a person’s property and assets after they have died. If the person dies with a will, they are called ‘testate.’ If a person dies without a will, it is called ‘intestate.’ The probate of an Estate, whether or not there is a will, is governed by State statutes. Each State has its particular statutes to govern that probate process. If there is a will, the probate proceeding is the judicial proceeding to establish the legal status of the purported will and to furnish a record of the validity of the rights of persons under the will. If there is no will, the succession of the property, often referred to as intestate succession, is governed by the statues of that State.
Grounds or Reasons for Will Contesting
Lack of proper execution is the failure to follow the requirements necessary for the execution of a will. The statues set forth the requirements to execute a valid will. In general, it is required that there be two witnesses to the execution of the will; that a notary notarizes the signatures; and that the will contain a self‐attestation clause as is outlined in the statutes.
The testamentary capacity that is required to execute a will requires that a person knows the natural objects of his or her bounty and the nature and extent of his or her property. In other words, who would naturally take from them and mostly the property and assets including real estate that the person owns. It is generally required that the Testator is able to make a rational plan for disposing of that property, keeping in mind the extent of their property and the objects of their bounty. Which in essence is saying that they realize what property they have and who would normally take that property from them and they can make a rational plan to dispose of that property.
Another reason for contesting a will is where there is undue influence. Undue influence, in general, is a situation where persons that have the opportunity and ability to exert influence on a person; that person is susceptible to influence others, and it results in that person executing a will due to that influence. Usually, there needs to be a showing that the person used their position to exert influence upon the person that prepared the will and that their influence changed the distribution plan as a result of that influence.
Use of Force or Duress
Another ground to contest a will is duress. Duress is mainly the use of force to compel a person to execute a will. Other grounds to contest a will that are less frequently used include mistake and fraud. An example of error would be when the person signing a will does not realize they are signing a will. For example, they think they are signing a deed to some property. An example of fraud would be if a person intentionally represents the person that signs a will that is not a will.
Nebraska does allow handwritten or holographic wills if the signature, the material provisions and an indication of the date of signing, are all in the handwriting of the testator.
However, these wills are often subject to a will contest and not recommended.
Probate and Timelines
There are strict timelines for objecting to the will. Time is of the essence when bringing any objections to a will. Only persons with standing may contest a will. Standing means that a person has a pecuniary or statutory interest that would be affected by the outcome of the action. In other words, a person must stand to receive money or property to be an interested person contesting a will.
A number of States have adopted the Uniform Probate Code and therefore have the same or similar statutes regarding probate. Under the Uniform Probate Code, there are informal procedures and formal procedures. The formal procedures are used in the event of a will contest.
Will contesting can be complicated and involve many time restrictions and time deadlines. If you have questions regarding a purported will or probate where there is no will, you should immediately contact our office.