A will reflects the intention of how a person wants his estate handled after his death. Statistics show that about 46% of United States adults have a will. You might fall within the category of the 46% that have a will or are beneficiary of one. There is a likelihood you might need to contest a will if there are disputes around it.
Particularly, if you are a spouse to the testator. You might have no choice but to contest the will of your partner if you need to preserve the wishes of your partner. This process can be challenging, long, and complicated.
Especially if it is not done under the guidance of an experienced estate planning lawyer. Lawyers who specialize in estate planning collaborate with their clients and occasionally with tax and financial advisors to develop a personalized estate plan that meets each client’s requirements
The prerequisite of contesting a will
There is a likelihood for disputes to arise when sharing the estates of your deceased spouse. To prevent that, there are a plethora of laws that guide the process of contesting a will. One of the core requirements is for you to have the legal capacity to contest the will. Not all persons can contest a will under the law. You must have the legal capacity to do so. This means you must be an adult with a sound mind.
The following are those that can contest a will:
- Persons and beneficiaries named in the will
- Heirs of the deceased. This refers to those who can inherit the estate of the deceased even if he dies without a will. For example, spouses, children, grandchildren, parents, and siblings
- Non-beneficiaries who have an interest in the will, provided the will is reviewed.
It is possible not to be a beneficiary of your deceased spouse’s will. However, if you have reasons to contest the will you are eligible to do so under the law. This is because you qualify as the heir of the deceased. Thus, as a surviving spouse of your deceased partner you can contest their will.
Right to contest a Will
The feeling of being left out when you know you deserve more can be heartbreaking. You have the right as a spouse to challenge the will of your partner if you feel left out and not given a fair share. There are requirements that make a will valid. You have the right as the spouse of a testator to challenge the validity of their will for these various reasons:
- True desires of the testator.
You know your partner better than most other extended family members. You have the right as a spouse to challenge the will of your spouse. Particularly, if it does not reflect the intentions of your spouse.
- Mental capacity of the testator
One of the things that invalidates a valid will is the mental incapacity of the testator. If the family and friends of your spouse proceed to make a will for your spouse, you have the right to contest it. On the ground that at the time the will was made, your spouse did not have the mental capacity to make a will. Also, such a will was made without your consent and was not made during the lucid moment of your spouse. You have the right to protect the interests of your late spouse by contesting the validity of the will.
- Duress, undue influence, and fraud
You can contest the will of your spouse if you have clear and compelling evidence that it was made under duress. The court can, on such a basis, make adjustments to the will to reflect the true intentions of your deceased partner. However, the onus is on you to prove such a will was made under fraud or duress. You can do this by providing the relevant facts that were mistaken and the true intent of the testator.
- Different beneficiary
If you have reason to believe a particular beneficiary is not entitled under your partner’s will, it can be contested.
- Financial provisions
You have the right as a spouse to challenge the will of your deceased spouse as a financial dependent. You have to show that the will does not make enough financial provision for you as the deceased’s dependent.
- Partner’s assets have been handled wrongly
You can contest your deceased partner’s will if his properties have been dealt with wrongly. Particularly, if you owned the properties jointly and they were wrongly given to a different beneficiary.
- You have the right to contest
Administrators of a will are duty-bound to administer and distribute the estate of the deceased. If you think they are acting contrary, you can contest their will. Especially if they are not distributing the properties based on the terms of the will.
- Another valid will made after the current one
It is an established principle of law that another will be made after an existing one takes priority. If you are aware your partner made a different will, you can contest the present one on that basis. You can do this by evidencing the latter’s will and showing that it is validly made.
As a spouse contesting a will, your first step of action would be challenging the beneficiaries and the will. Which is rightly so. It is, however, important to do it the right way so as not to complicate the process.
It is important to seek legal advice immediately (estate planning lawyer) if you think you have a case. This prevents assets from being wrongly distributed and other types of complications that may result from self-help.