HOW DO I GO ABOUT BREAKING A WILL?
What happens when you expect to receive an inheritance from a loved one, and find out that your loved one has unexpectedly left her estate to others? Can you challenge the will in court? The short answer is “yes.” A will contest is a lawsuit in Chancery Court the sole purpose of which is to determine whether a particular writing is the valid last will and testament of a deceased person. Those who say it is, are called “proponents,” and those who say it isn’t are called “contestants.”
WHO CAN CONTEST A WILL?
The short answer is anyone who would take any property of the deceased person if the will were determined to be invalid, or serve as fiduciary under a prior will.
HOW CAN I START A WILL CONTEST?
You contact an attorney who practices probate law. If the will has not been filed for probate, you can file an instrument called a “caveat” against the probate of the will. All this does is prevent the will from being probated without notice to you and a formal hearing. If the will has already been filed for probate without notice to you, you can file a suit to set it aside within two (2) years after it has been probated.
WHAT ARE THE ISSUES IN A WILL CONTEST?
There is really only one–is it a will or not? However, within that broad question, there are sub-issues. Although a will can sometimes be set aside for other reasons, such as forgery, fraud or mistake, the vast majority of will contests will come down to three issues. First, did the testator have sufficient mind and memory to understand the nature of making a will, who the natural objects of his affection are, and basically what property he owned? This is referred to as testamentary capacity. Did the testator have it or not? If he did, then the second question is whether or not the testator’s intentions with regard to the disposition of his property were preserved with proper indicia of reliability. This means not only that the will be in writing, but also that the writing bear indicators of legitimacy. Mississippi law requires that the will either be entirely in the handwriting of the testator and signed, or that his signature be witnessed by two competent adults, who, in turn, sign their names to the will in the presence of the testator, with knowledge that it is a will they are signing, and who can testify that at the time, the testator had testamentary capacity. So, the second way to attack a will is that it was not properly executed. The third attack is that the will was not the will of the testator because it does not reflect the testator’s true wishes because the will was the product of fraud, coercion, duress or “undue” influence of another person. Since these things are usually done in secret, the Mississippi Supreme Court has prescribed ways of proving an undue influence case with circumstantial evidence, and various presumptions of undue influence which require the proponent to prove the lack of undue influence in certain circumstances.
CAN I GET A TRIAL BY JURY?
Yes. Although jury trials are not the norm in Chancery Court, a will contest is a special exception, and the chancellor will empanel a jury at the request of either party.
CAVEAT
Before you file a will contest, you need to consider whether you are receiving anything under the will you don’t like. The will may contain an “in terrorem” clause, which revokes the bequest to any beneficiary who contests the will. Such a clause raises the stakes in a will contest, because you must be willing to lose what the will has given you, in exchange for the chance that you will be successful and get more property or money if the will is thrown out.
HOW DO I PREVENT A WILL CONTEST?
Most will contests fail, especially where an attorney draws up the will and supervises its execution. The best way to prevent a will contest is to have it prepared by a competent estate planning attorney, and sign the will in his or her office. It really is that simple.
If you feel that your loved one was a victim of undue influence or that a will is otherwise invalid, or if you would like to offer a will for probate or having offered it, it has been contested, feel free to call us. It costs you nothing to discuss your case with us.