My sister wants to contest dad’s will. Dad remarried after mom died and left everything to his new wife. Can my sister contest his will so our stepmom doesn’t get everything?
Wills provide instruction as to how you want your assets to be dispersed at your death. They can also designate a guardian for your minor children, tell your heirs how you want your funeral handled, and even make sure the dining room table goes to a specific person. A will cannot distribute assets in a trust, change survivorship of bank accounts or even modify the beneficiary of an insurance policy.
Even if you think you have great estate planning you should have a will for the disposition of your everyday personal property and things that are difficult to hold in a trust. Wills are also important for assets you have overlooked or forgotten when you planned your estate or is found to be improperly conveyed into a trust. Your will is your safety net in case you forget something and you can always add a pour over provision that takes what is left in your will and conveys it into your trust.
Your sister, or any person who wants to contest a will, must have legal standing to do so. That means they are a beneficiary named in the will or would have inheritance rights as if the deceased person died without a will. Sounds like your sister meets this requirement.
Your sister must have legal grounds to contest the will which would set aside part or all of the will. Will are treated different in each state but some of the common legal grounds to contest a will are:
(1) Fraud, where the person making the will (the testator) was tricked into make a will.
(2) Forgery, is where the signature on the will is forged.
(3) Lack of mental capacity, meaning the testator lacked the mental capacity to make the will at the time it was executed.
(4) Will was not properly executed or witnessed, meaning the will does not satisfy the legal requirement to be a valid will.
(5) Someone put improper pressure on your dad to put in provisions in the will the normally would have been left out, or
(6) A newer will exists that supersedes the old will.
Any person challenging a will must file a complaint with the probate court handling the will. The complaint must describe the reasons the will could be invalid. Unless the will issue is settled out of court, the probate judge will start the discovery process for each side to prove their positions. Probate courts use the preponderance of the evidence as the level of proof in their courts as opposed to beyond a doubt in a criminal court.
Think of two kids on a teeter-totter and both weigh the same. The teeter-totter would be level. Give one kid a gallon of milk and the extra weight causes him to sink. The same thing happens with a preponderance of the evidence, any small amount of evidence more than the other side allows you to win.
What you should learn from your dad’s will is the necessity to ensure your will is properly prepared and executed. Should you decide to omit some of your heirs you can do that. You can even skip probate by using estate planning tools such as revocable living trusts, insurance policies and even making gifts to someone during your lifetime. All of these tools can reduce the likelihood of your will or trust being overturned.
Probably the best way to ensure your will does what you want it to do and your heirs don’t contest it is for you to keep them informed on what you are planning. They will let you know if they disagree and you can take actions to make changes to include their wishes or to ensure you know who will be contesting your will and why. If you know the problem, then you can work around it to get your will to hold up in court.
Most problems come from the challenge to your will that you were not mentally competent at the time you executed your will. The way to make sure your will is legal is have a medical doctor certify you are medically competent at the time you execute your will by having him examine you just before you sign the will. You can also make a video of you and the witnesses during the execution of the will which will help you in court. You can also make the will when you are younger or well before you become ill so there is less likelihood you could be called incompetent.
Remember to use simple language in your will, something that everyone can understand, and let your heirs know what you are doing. Make sure you are following all your state laws on wills to ensure they are valid. In Oklahoma when I executed my will I had to say the magic words; “This is my last will and testament and I want you to watch me sign it.” I had to then initial every page and sign the last page with two witnesses watching me and then signing the last page under my name.
Jim C. Klepper is President of Interstate Trucker Ltd., a law firm entirely dedicated
to legal defense of the nation's commercial drivers. Interstate Trucker represents
truck drivers throughout the forty-eight (48) states on both moving and non-moving
violations. Jim is also president of Drivers Legal Plan, which allows member drivers
access to his firm’s services at greatly discounted rates. Jim, a former prosecutor,
is also a registered pharmacist, with considerable experience in alcohol and drug
related cases. He is a lawyer that has focused on transportation law and the trucking
industry in particular. He works to answer your legal questions about trucking and
life over-the-road and has his Commercial Drivers License.
800-333-DRIVE (3748) or www.interstatetrucker.com
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