If my mother recently passed, how can I contest the terms of her Will?

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If my mother recently passed, how can I contest the terms of her Will?

I was left one 1/3 of the estate. However, my share of the property according to the Will, is to be converted to cash, put into an interest bearing account, whereas I receive $300 per month, with my brother-in-law as trustee. I feel this is unfair that my sister and brother-in-law get their shares upfront. Is there a way to get around my portion going into Trust? I am 3 months from my 47th birthday. I am also sound in mind (no mental handicaps or retardation). I made some mistakes when I was younger but have made a lot of changes in my life. I just want what is coming to me so I can buy a house, a vehicle and pay my bills. Not an allowance like a child.

Asked on February 26, 2014 under Estate Planning, Illinois

Answers:

FreeAdvice Contributing Attorney / FreeAdvice Contributing Attorney

Answered 7 years ago | Contributor

Contesting a will is very unusual. By one estimate, about 99% of wills sail through probate without a hitch. If a will doesn't fulfill certain legal requirements, or the maker of the will was not of age or sound mind, a would-be heir or beneficiary can challenge it in probate court after the will maker's death. There are several grounds on which someone who stands to benefit from getting the will thrown out can base a legal challenge.

Age

It's almost never an issue, but the person who made 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" when the will was made. 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.

In reality, a person must have been pretty far gone before a court will rule a will invalid. Forgetfulness or even the inability to recognize friends doesn't, by itself, establish incapacity.

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.

Learn more about undue influence.

Contents of the Will

What makes a document a valid will? For starters, every state has rules about what a will must, at a minimum, contain. Most states require that the document:

  • expressly state that it's 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 (called a "personal representative" in some states), the person responsible for carrying out the terms of the will when the time comes. Nevertheless, in most states, even if an executor is not named, the court will appoint one and then enforce the will.

Witnesses

A typed or computer-printed will must have been 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.

Learn more about holographic wills

Notarization

Wills don't have to be notarized to be valid. Some wills, however, include a "self-proving" affidavit (sworn statement) that the witnesses sign in front of a notary public.

Based upon what you have written, I suggest that you consult with an attorney in your locality. One can be found on attorneypages.com. From what you have written about, it may be a big task to get more than $300 per month under your mother's Will.


IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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