Houston Estate Planning and Elder Law Attorney Blog
Estate battles among high profile celebrities are all over the news, but can a regular person contest a will if they feel that they were unjustly treated?
You may have seen a million movies where kids are cut out of a will, but when it happens to you or someone you love, the intensity of feeling hurt or rejected may come as a surprise. If your parent or family member did not discuss his or her intentions with you while he or she was alive, getting rejected from the beyond might come as a surprise. An article from business2community.com, “How to Successfully Contest a Will,” examines what can be done to fight back.
Contesting the will as a spouse: the right of election. If your spouse left you out of his or her will, you would be entitled to the right of election in most states. This means that you can reject the will and get a certain dollar amount or percentage of the estate pursuant to state probate law.
Contesting the will as another type of heir. Other than a surviving spouse, no one has an automatic right to inherit anything, meaning a person can cut out anyone they choose. However, people can contest the will’s validity on other grounds:
- Improper signing: If the will wasn’t signed in accordance with state laws, the will may be thrown out. For example, in most states a testator must sign the will in the presence of two witnesses who are unrelated to him or her by blood or marriage.
- Lack of capacity: We’ve seen this many times in the case of billionaires changing their wills right before they pass away. If the testator can be shown not to have had the capacity needed to create and sign the will, then the will may be invalidated. People who have dementia can still be considered capable of executing a will if they intermittently displayed the necessary mental capacity.
- Undue influence or fraud: What if a person was forced to sign the will or signed it without realizing he or she was signing a will? What if someone swapped pages in the will when the signature happened? In each of these instances, the will could be invalid.
- A later will or codicil: A will can be invalidated if another one, signed later, is discovered. The most recent will is used, and it’s as if the old one doesn’t exist. If the testator signed a codicil or amendment to the existing will, both the codicil and will are probated. Any changes or additions made in the codicil will control the distribution. A codicil can also be contested, just like a will.
- An invalidated will: What happens if you succeed and the will is thrown out? If an older will was signed before the now invalidated one, the old will might take effect if approved by the court. If there is no other will, the estate is divided according to the terms of Texas intestacy laws—usually assets are divided among the spouse and the children.
If you feel that you have been wrongly cut out of a will, meet with a Houston estate planning attorney to discuss the situation and learn what your options are. Bear in mind that contesting a will may not always give you the final results that you had desired, but it may help you resolve hurt feelings and achieve some degree of closure with the passing of a loved one.
Reference: business2community.com (June 28, 2016) “How to Successfully Contest a Will”