Despite what you may see in the movies, there is rarely, if ever, a “reading of the Will” after a person passes away. Family members and friends don’t show up at the attorney’s office and sit around the conference table to hear with bated breath whether you are inheriting grandfather’s secret Swiss bank accounts or find out that he hated you all his life and left you nothing. And worked for the CIA, slept with your wife, and stole your bike when you were eight.
In reality, people normally just receive a copy of the Will in the mail from a law firm and read through it in the privacy of their own home. It’s then and there that most people decide to a dispute a Will.
In general, a person has two years to contest the validity of the Will. The best time to contest a Will is before the Probate Judge signs the order admitting the Will to Probate. If the contestant can file a Will Contest before then, the burden of proving the Will is valid rests with the other side. If you wait to contest the Will until after the Judge signs the order, then you have the burden of proving the Will is invalid, making it much harder on you. In many cases the Judge may be signing the Order to Admit the Will to Probate within thirty days of the person passing away, so timing is crucial. A contestant should act quickly to contest an invalid Will.
The main reasons a Will is contested, and ultimately ruled invalid, are for the following reasons:
1. The Testator (person who signs the Will) lacked Testamentary Capacity. If the person was in a coma, mental disabled, or for other reasons unable to understand what they were signing or what their estate was composed of, or who their heirs were, the Court may rule that the Testator lacked Testamentary Capacity and declare the Will invalid.
2. The Testator may have been under Undue Influence when they signed the Will. If a child or friend exerts pressure over the Testator to leave everything to them, and leave the other children or family members out of the Will, the Court may rule that the Testator was under Undue Influence.
3. A later Will may be found. A Will may be admitted to Probate, and a year later another Will is discovered that was signed after the first Will. It is possible to dispute the Will and probate the second Will (because typically the second Will revokes all prior wills).
4. The Will may have been signed fraudulently or induced by fraud. A person may tell a sickly Testator that their child doesn’t want the inheritance and so the Testator should leave the asset to the friend, even though the child has never said anything of the kind. Or the Testator’s signature may have been forged.
5. Lack of Formalities in signing the Will. The Will may have not been properly witnessed by two witnesses, signed by the Testator, or certain clauses may have been handwritten into the will in an otherwise all typed Will.
These are only five of the main reasons a Will is contested and eventually ruled invalid. No matter the reason for contesting the Will, a crucial point is time. The sooner a person files a Contest of a Will, the better the chances are of success.