1

In the Right COURT

To file and win a will challenge you need to be a proper claimant in the right court within the time allowed by State statute. Will challenges usually need to be brought in probate court in the county of residence for the deceased. Challenging a will is governed by State specific rules which vary greatly. Some States, such as my home state of Washington, only allow challenges to the will itself. This means that a successful challenge would result in the will not being admitted. Other States, such as California, allow challenges to specific sections of the will. These challenges result in the submitted will remaining while the court redirects a specific bequest to the challenger rather than as stated in the will. You need to know which kinds of will contests are allowed by the proper court of jurisdiction.

2

By the Right PERSON

To challenge a Will, the petitioner must have a direct pecuniary interest in the Will. You must stand to lose directly in a financial way if the Will is allowed to stand. Most courts will not allow a will challenge from someone just because they don't like the fact that someone else received the 1966 Jaguar XJ13 on the grounds that "daddy knew I wanted it.". You need more than that. Examples of "the right person": - An intestate heir who would not take as much under the contested Will. - A beneficiary under a prior Will who would not take as much under the contested Will. - A child or spouse not mentioned in the will. Examples of contestants who are not "the right person": - A named Personal Representative in a prior Will if his/her only interest is the loss of receiving compensation for services as Personal Representative. - A beneficiary of a prior Will who can't demonstrate its validity. - Creditors of the deceased. Their claim is against the estate rather than the will

3

At the Right TIME

Once a Will has been admitted to probate, any Will Contest must be filed within the time allowed by law after the date the Court admits it to probate. This rule is remarkably strict. For example, here in WA, the court dismissed a will contest filed one day late. Additional time for mailings or even if fraud was involved in the lateness have not been allowed. Make sure you understand your local rules for timeliness of a will contest. If you are a "reasonably ascertainable" contestant who fails to be sent Notice of Probate you should have more time to file but this is still often not unlimited.

4

For the Right REASONS (Age and Influence)

Wills can be dismissed in their entirety if the Will or the Deceased did not meet minimum qualifications AT THE TIME the will was executed: Age is rarely an issue, but the maker of the will must have been: * 18 years of age or older, or * living in one of the few states that permit younger persons to make a will if they're married, in the military, or otherwise considered "emancipated." Mental State The maker of the will must have been of "sound mind". This is not a rigorous requirement. Usually, a court faced with resolving a question of mental capacity requires only that the person who made the will: * knew what a will does and that he or she was making one * knew who he or she would normally be expected to provide for, such as a spouse or children * understood what he or she owned, and * was able to decide how to distribute his or her property. Forgetfulness or even the inability to recognize friends doesn't, by itself, establish incapacit

5

For the Right REASONS (Fraud or Contents)

Wills can be dismissed in their entirety if the Will or the Deceased did not meet minimum qualifications AT THE TIME the will was executed: Fraud or Undue Influence A will can also be declared invalid if a court determines that it was procured by fraud, forgery, or "undue influence." This usually involves some evil-doer who occupies a position of trust -- for example, a caregiver or adult child -- manipulating a vulnerable person to leave all, or most, of his property to the manipulator. Contents of the Will Every state has rules about what a will must, at a minimum, contain. Most states require that the document: * expressly state that it is the will of the person who wrote it * include at least one substantive provision, such as a clause leaving some property to someone or appointing a personal guardian for a minor child, and * appoint an executor. In many states, even if an executor is not named, the court will appoint one and then enforce the will.

6

For the Right REASONS (Witnesses and Signatures)

Wills can be dismissed in their entirety if the Will or the Deceased did not meet minimum qualifications AT THE TIME the will was executed: Witnesses A typed or computer-printed will must be dated and signed in the presence of at least two adult witnesses. In most states, the witnesses cannot be people who are named to inherit property under the will. (If a witness inherits, this may void the gift to himself but not the rest of the will.) Handwritten, unwitnessed wills are valid in about half the states. These "holographic" wills must be written and signed entirely in the handwriting of the person making the will. (Some states, but not all, require that they be dated.) Because there are no witnesses, holographic wills are more easily challenged than standard typewritten wills; the probate court must be satisfied that the document is actually in the deceased person's handwriting and was intended to serve as a will. Wills don't have to be notarized to be valid.

7

What About No-Contest Provisions?

Many wills contain clauses to the effect "if anyone contests this will their share will be limited to $100". The Uniform Probate Code (UPC) allows for no-contest clauses so long as the person challenging the will doesn't have probable cause (the RIGHT reasons above) to do so: "A provision in a will purporting to penalize an interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable if probable cause exists for instituting proceedings." States that have adopted the UPC thus limit a will challenge for other than probable cause to defeat the will if the will contains such a clause. Know your jurisdiction's rules! For example, in California, no-contest clauses are completely effective, and limit any party that unsuccessfully contests a will containing such a clause. However, in Florida no-contest clauses in wills are specifically unenforceable, irrespective of probable cause, pursuant to statute.

8

Getting an Attorney Involved

My favorite will contest story is in John Grisham's "The Testament"; each of the children hiring their own attorney to contest a will that proves to be superseded. However, not even Grisham's creativity can top the real life drama of will contests such as Leona Helmsley or Anna Nicole Smith. Sometimes people contest a will only to find out that they receive less under the intestacy statues or a previous will they knew nothing about. Will contests can involve so many picayune details or frustrating bickering that many probate attorneys do not handle probate litigation. If you want to involve an attorney look for a probate litigator in the proper jurisdiction. Fees can vary sharply depending on state statutes. Know your rights, know the proper court, know the alternatives, make sure such a contest is valid and gives you the results you are looking for.