Wot to do when someone is contesting a will..
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Wot to do when someone is contesting a will..
My father and stepmother
made the same will. And now
the stepbrothers are
challenging the will. My
father and stepmother have
passed away.
Asked on December 28, 2017 under Estate Planning, Alaska
Answers:
SJZ, Member, New York Bar / FreeAdvice Contributing Attorney
Answered 6 years ago | Contributor
You retain an attorney to help you, assuming there is enough money at stake to justify hiring a lawyer; if not, you respond to the court papers (e.g. the complaint and/or any motion papers) yourself, within the indicated time frame, then show up in court when required. The burden is on them to prove that there is one of only a limited number of reasons why the will is not valid, such as--
1) Lack of mental capacity: the person who made the will was not mentally competent when he/she made it.
2) Coercion or duress: the person was forced to make the will.
3) Undue influence: similar to the above, but someone who had a great deal of power over the testator (person making the will) convinced him or her to make it by using that position of power--most often comes into play when a live-in care-giver uses their power over a disabled person to unfairly or unreasonably influence what they do.
4) Fraud or forgery: the will signed is not the one the person intended to so sign.
5) Not properly signed or witnessed.
The person making the challenge has to prove one or more of the above; if they can't, the challenge fails. Anyone seeking to support or uphold the will can present evidence countering any evidence trying to tear down the will.
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