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Should you contest your loved one's will?

You are still grieving the recent death of a loved one. Perhaps the deceased was your sibling, your parent or your spouse. Whatever your relationship, you have suffered an unimaginable loss.

Despite your grief, you were still anticipating the probate process. You assumed your loved one would include you in their final wishes, but your grief increased when you learned they did not name you in their will, or other persons were named who you think should not have been included. What happened, and can you fight for an inheritance?

Who can contest a will?

If the deceased who made his or her will (the "testator") named you as a beneficiary in a previous will, you have "legal standing" in the new will. Having legal standing means that the law allows you to contest the will, or to question its validity. If there was not a previous will, you can contest the existing will if you are an "heir at law" or one of the closest blood relatives to the deceased.

What are the grounds for contesting a will?

If you want to contest your loved one's will, you'll have to prove at least one of five things:

  1. Undue Influence -- Did a third party influence your loved one when they were making the will? That could have affected your loved one's "free agency," or their ability to think for themselves.
  2. Lack of Testamentary Capacity -- Did your loved one make their will when they were of sound mind? You may have to prove that the will maker was mentally incapable when they made the will.
  3. Fraud or Forgery -- Did the signatures or the will itself look suspicious to you? It is possible that someone forged your loved one's signature, or that someone altered the will your loved one signed.
  4. Revocation --Did your loved one revoke a previous will? A person revokes his or her will by destroying it intentionally, adding a section revoking it or replacing it with a newer will. However, a third party could have destroyed a previous will without the consent of the testator's intent.
  5. Ignorance of Contents - Did your loved one have a third party write his or her will? If your loved one signed it without knowing what was inside, the will may not be valid.

When can you contest a will?

If you are interested in contesting your loved one's will, it's important to do so quickly. The deadline for contesting a will is six months after the beginning of probate, and just 42 days to require formal proof of the will by having the witnesses come to court and testify about its creation. After the six months have passed, you may not have a chance to fight for an inheritance.

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