Creating a will is an important part of an estate plan. Indeed, a will does many things: it outlines how one’s property will be distributed; it can be used to make charitable contributions; it ensure that loved ones are provided for; it names a guardian for a minor child, and more. But just because someone has a will does not necessarily mean that the wishes expressed in their will, will be upheld. In fact, wills can be, and often are, contested. At the law offices of John H. Ruby & Associates, our skilled attorneys have experience in probate court handling cases involving contested wills, and are prepared to provide you with the legal representation you’re looking for if you’re a person who has lost a loved one and wants to contest the validity of that loved one’s will.
Reasons Why a Will Might Be Contested
A party may contest a will when they believe that the will is not valid. Arguments that can be made that may undermine the validity of a will include:
- The creator of the will lacked the capacity to create the will at the time of its creation, either as a result of being a minor under the age of 18 at the time of the will’s creation, or as a result of lacking the mental capacity to create a will. A lack of mental capacity may exist if the party challenging the will can prove that the testator (the creator of the will) was under the influence of an impairing substance at the time of the will’s creation, was legally insane, or suffered from a form of mental illness, such as dementia.
- Another, more recent will exists. It is not uncommon for a person to amend a will or create a new one over the course of their lifetime. As such, it is possible for a will to be contested on the basis that another, more recent will exists. Assuming that a more recent will is valid, the most recent version of a will is the version that is enforceable.
- The will was not created as a result of the testator’s free will. When a person creates a will, they must do so of their own free will; if a will is created under duress or undue influence, it is not valid. A will is also clearly not valid if it was forged, or created as a result of fraud.
Contesting a Will in Probate Court
When a person dies, the executor of their estate must locate their will, and then file a petition asking the district court to admit the will to the probate court. This is where the probate process, and the process of proving the will, begins. (As a note, the probate process is the court-supervised process of proving a will, inventorying assets, and distributing them per the terms of a will or intestacy laws if a will does not exist).
After the district court has issued a decision regarding its acceptance of the will, you can file a complaint contesting the will in circuit court. You have two years to do this; if you wait longer than two years, you cannot contest the will. However, if you file your complaint within 12 months, rather than waiting for the full two years, then you can prevent the estate from being distributed per the will’s directions.
Benefits and Disadvantages of Contesting a Will
If you truly believe that your loved one’s will is not valid because the will was created at a time when your loved one was not legally capable of creating the will, because it was created with undue influence or fraudulently, or because you believe that another, more recent version of a will exists, contesting a will may be within your best interests. This is especially true if you do not agree with the provisions of a will and do not believe that your loved one would have wanted an existing will to be recognized as valid.
While contesting a will could mean a different property distribution arrangement for you, you should keep in mind that contesting a will is often very expensive, time consuming, and difficult. Most wills pass through the probate process without being contested, and those who do file complaints regarding will invalidity are not always successful. In fact, if you do not have very clear and convincing evidence, such as medical evidence showing that your loved one was incapacitated at the time that the will was created, you should think twice about contesting a will.
How Working with an Experience Attorney Can Help
Wills are complicated legal documents, and understanding their validity and enforceability when a loved one dies, especially if one does not agree with the provisions of a will, can be difficult to do. What’s more, understanding the probate process and your role in it, especially if you are named as the executor of a decedent’s estate, can be particularly challenging. When you work with a legal professional, you’ll be guided through the entire process, beginning with finding the will, filing a petition asking the court to admit the will, reviewing the will to determine validity, and contesting the will if need be. An attorney’s job is to provide you with accurate answers to your tough legal questions, and the representation and support you’re looking for.
Contact the Law Offices of John H. Ruby & Associates Today
At the law offices of John H. Ruby & Associates, our experienced probate attorneys in Kentucky know that losing a loved one can be hard enough as it is; the last thing that you probably want to worry about is probate and contesting a will. However, if you think a will in invalid, challenging it may be in your best interests. We can help you to gather evidence necessary to successfully contest a will, file all petitions and complaints on your behalf, and ensure that you take action within the required amount of time.
To learn more about will contests in Kentucky, and how our law firm can help, please feel free to visit us in person today, send us a message, or call us at 502-895-2626. We are here to support you.