When a loved one dies, many emotions rise to the surface for the loved ones left behind. These emotions, along with relationship issues that have existed, and I hate to say it, greed, often lead to family members fighting over the estate of their departed loved one.
Wills are generally contested when an heir or beneficiary believes that some third party interfered with the person who created the will’s wishes or free will. This is known as undue influence. Wills are also contested where there is a question of whether the person who created it was of “sound mind” when the will was prepared. Both of these contests are tricky and the person bringing them generally has the burden of proving their claims. They also run the risk of violating a clause in the will called the no-contest clause. If this clause is violated, the person bringing the contest may lose any gift left to them in the will.
It is important to discuss the issues relating to potential issues with a will as soon as you can sit down with an attorney. There are specific deadlines that need to be met, and your claim can be lost if you wait too long to bring it. Even if you are unsure, see an attorney, discuss the facts and your concerns, and see if anything can be done before it is too late.
Trust contests are similar to Will Contests in that the person who brings the claim in court is usually claiming that the creation of the trust was the product of undue influence or the person who created the trust lacked capacity. As with wills, it is important to carefully review the trust for a no-contest clause and discuss the risks of contesting the trust with an attorney.
PETITIONS FOR REMOVAL AND ACCOUNTING
When a person in charge of a will or trust (usually an executor, administrator or trustee) does not follow the terms of the document or the steps required by the law, any interested person can bring a petition to the court for their removal and to obtain an accounting for any acts done by that person since they took charge of the deceased person’s assets. As with the other claims, don’t wait too long to bring it. Usually the more time that goes by, the more things have gone wrong and the harder and more expensive it will be to fix the issues.