Contesting a will can be hard on all parties involved in the legal battle, but there are cases where it is worth it. However, because it can take months to go through the court processes necessary to successfully challenge a will, there are situations where contesting a will would not be in anyone’s best interest.
Because each will contest is different, the costs of challenging a will vary depending on the specific circumstances of your case. However, most contests will cost thousands of dollars in legal fees, with attorney retainers generally ranging from $5,000 to $10,000. It is challenging to successfully contesting a will, so it is highly advisable to discuss your case with a reputable will contest lawyer before taking any action.
Whether it will be worth it to contest a will depends on factors such as how large the disputed estate is, the value of the assets you stand to recover, and how sound your arguments against the will’s validity are. An experienced estate litigation attorney can assess the strength of your case and help you decide if the potential benefits of contesting the will are worth the emotional and financial costs.
What are reasons to contest a will?
You cannot contest a will simply because you don’t like what it says. Instead, to dispute a will, you must have legal grounds to challenge the will’s validity. The most common reasons to contest a will are outlined in the sections below.
Legal Formalities Were Not Followed When Creating the Will
For a will to be legally enforceable, the person making it must follow specific legal formalities required under state law. The particular specifications vary from state to state, but everyone who creates a will usually must adhere to all of the following requirements for the will to be valid:
- The person making the will must be of legal age.
- The person making the will must have testamentary intent, which means they must want the document to serve as their will.
Additionally, in order to verify the document’s validity, the person making the will usually must sign it in front of at least two witnesses (some states require more), and the witnesses must sign the will as well. However, there is an exception to the witness and signature requirements for hand-written (“holographic”) wills.
Lack of Testamentary Capacity
For a will to be valid, the person creating it must have “testamentary capacity.” This means that they must have sufficient mental awareness to comprehend three fundamental concepts:
- The extent of their estate
- That they are creating is a will
- Who will inherit their assets
Another common reason to contest a will contest is undue influence or fraud. In cases of undue influence, the person executing the will did not create it of their own free will. Rather, they were compelled to make the will or name someone as a beneficiary when they would not have otherwise done so.
Fraudulent wills may also be contested. This includes forged and otherwise fraudulent will documents, as well as wills that were executed through fraud. For example, if a fraudster tricked someone into signing a will by telling them it was a different document, the will could be challenged as a fraudulently-induced legal document.
Who pays legal costs when contesting a will?
Usually, the person contesting a will is responsible for paying the legal costs. However, a successful challenger may be able to be reimbursed for litigation costs from the estate’s assets in some circumstances.
In probate litigation, each side of a dispute is responsible for its own attorney fees. The person who initiates a will contest will also have to cover any court filing fees and other expenses. However, depending on the law in your state, you may be able to request to be reimbursed for your expenses from the estate’s funds if you can prove that your actions benefitted the estate. An experienced probate litigation attorney can help you navigate the will contest process and explain your potential options for recovering your legal costs.
Have questions? We’re happy to discuss.
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About RMO, LLP
RMO LLP serves clients in Los Angeles, Santa Monica, Ventura, Santa Barbara, San Francisco, Orange County, San Diego, Kansas City, Miami, and communities throughout California, Florida, Missouri, and Kansas. Our founder, Scott E. Rahn, has been named “Top 100 – Trust and Estate Litigation” by SuperLawyers, Trusts and Estates Litigator of the Year, and Best Lawyers in America for Litigation – Trusts and Estates. For a free consultation, call (424) 320-9444 or visit: https://rmolawyers.com.