It is completely in the hands of the deceased person, and he/she can leave the fortune to whoever he/she likes. In most cases, that person's children and immediate family will be the beneficiaries, so it is very common to see the children and relatives of a deceased person contesting a will.
It is difficult to successfully contest a will, so one must know the possible scenarios under which this can be successful. An individual needs to put a lot of thought in making a will, and he also does so in the presence of his lawyer, so to claim in a court of law that this will is invalid is a rather tall claim and requires a lot of evidence to prove it.
The individual who makes the will is known as the 'testator', and it is in the Law of Property that a will contest can be brought up. Contesting means objecting to the validity of the will, claiming that the will does not reflect the true intentions of the testator.
Reasons for Contesting a Will
If the objecting party can prove that the will was made under certain conditions, then the will can be considered invalid. Given are the cases under which contesting can be successful.
- The ability of an individual to make a will under healthy conditions of memory and disposing mind is known as their testamentary capacity. If it is proven that the individual had a lack of testamentary capacity while making the will, it can be contested.
- If it can be proven that the will was made under fraudulent circumstances.
- If it can be proven that the testator was suffering from an insane delusion while creating the will.
- Lastly, if it can be proven that the testator created the will under someone's pressure, or influence.
It needs to be proven in the court of law with convincing evidence that the will does not truly represent the intentions of the testator. It's interesting to note that if a 'No-contest' clause, also referred to as 'Terrorem Clause', is included in a will, none of the beneficiaries can contest it.
They are then left with two choices, either to take whatever they are given or to take nothing at all. This clause is considered void in many states though.
Sometimes, the executor of a will, or the attorney, can end up making a mistake while creating the document. If this is the case, he can be sued by a party for legal malpractice or for ignoring his responsibilities. Though this is possible, it is something that happens very rarely.
Contesting is permitted to only two kinds of parties,
- Anyone who is mentioned on the face of the will.
- Anyone who would stand to benefit if the will was declared as invalid and the contest was successful.
The best thing to do would be to contest the will as soon as possible, because the longer you wait, the harder it will be to lodge a successful contest. Some lawyers say 120 days from the date of death is a suitable time, whereas, some claim that 6 months from the date of death is sufficient time.
Contesting a will is a sensitive issue, as it may produce strife and conflict in the family. You should do it only if you feel you have a genuine claim of being treated unfairly, or if you feel that someone influenced the testator to not give you the fair share.