Challenging a Will
Will Contest Attorney Serving Oregon
If a will has been filed with the court for probate, some residents of Oregon may decide to contest it. It can be difficult to contest a will since courts often strictly obey the will’s contents as expressing the deceased testator’s preferences. The court’s assumption of a will’s validity can be overturned under specific circumstances.
A will can be challenged in its entirety or part by anyone interested in it. A person can dispute the will on three separate grounds. A challenge can be brought if either the entire will or a specific provision is invalid. It’s also possible to argue that a different will, not the one acknowledged to court, was drafted by the deceased.
The person challenging the will’s validity in whole or in part files a petition with the probate court to commence the will dispute process. If the challenge is based on a promise made by the decedent, the parties involved may bring a civil action entirely distinct from the probate process. Like all civil cases, challenging a will is subject to statutory deadlines. If an action or petition is not filed within the statutory deadline, it will be permanently barred from being filed.
We recommend that anyone considering challenging a will consult with our experienced will contest attorney who can assist in gathering evidence and filing necessary petitions with the court to overcome the court’s presumed validity.
How to Determine If a Will is Valid?
The executor’s first task is to locate the decedent’s will if any exists. If that’s the case, it may be quite a struggle. However, how can you know if the document you’ve found is legitimate and will be approved by the probate court?
The court will ultimately decide whether or not a claim is admissible. Assuming no flaws are found, you can either relax or brace yourself for a possible challenge to the will based on your preliminary document assessment.
To be legally binding, a will must meet three essential requirements.
It Must Be in Writing
Wills are almost always created using a computer program and printed off. It’s possible that older ones were written by hand on a typewriter. However, a valid will written solely by hand is feasible.
For example, if someone uses a fill-in-the-blanks form or crosses off text on a computer-printed will, there may be some confusion if there is handwriting and pre-printed words.
If the alterations cannot be traced back to a specific person or period, a court is unlikely to uphold them.
The Person Who Made It Must Have Signed and Dated It
A person’s signature and date are required on a will. If the testator could not sign the will himself, they may have witnessed the signing if they had instructed someone else to do so. Although it’s not needed, it’s typical for the willmaker to sign or initial each page.
Electronic signatures, which are becoming more popular, may eventually replace the traditional pen and ink method of signing wills. Only a tiny number of states now permit the use of electronic wills, which are wills created and signed electronically. Although electronic wills are not allowed in all states, some courts have given them the go-ahead.
Two Adult Witnesses Must Have Signed It
Witnesses are crucial. A notary public signs a document attesting to their belief that the willmaker is mentally competent and has not been coerced into signing the document by anybody else.
Witnesses who don’t inherit under the will are required in several states, but not all. Beneficiaries’ spouses may not even serve as witnesses in some states.
An interested person can’t inherit anything under the terms of a will if they’re a witness in a state that does not allow it. The will’s other provisions, on the other hand, will remain in effect.
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Who Can Challenge a Will?
The “interested parties” who can challenge the will are as follows:
- Beneficiaries already named in the will
- Beneficiaries named in a previous will, which were written out of the most recent version of the will, or whose share of the estate was significantly decreased by the newest will
- Anyone not named in the will but who would be eligible to inherit property if a will didn’t exist because of the state’s intestacy laws. This usually means a spouse, child, or next-of-kin
In Oregon, not everyone has the right to contest a will. A person must be a beneficiary or an heir of the person who made the will to bring a challenge to it. Our professional will contest attorney can look into your concerns and assist you with your court dispute. We’re here to help you go through your feelings and decide your next moves.
People can contest a will for a variety of reasons. To ensure that assets are divided fairly and according to the deceased’s wishes, it is vital to know those grounds and who can contest the will.
What Are the Legal Grounds in Challenging a Will?
Contesting a will is relatively unusual. The vast majority of will get through probate without a hitch. A would-be heir or beneficiary might dispute a will in probate court if it doesn’t meet specific legal standards or if the willmaker wasn’t of sound mind.
Legal challenges to a will can be based on various reasons, including a person’s claim that the will is invalid.
It’s rarely an issue, but the person who made the will must have been:
- 18 years of age or older
- living in one of the few states that permit younger persons to make a will if they’re married, in the military, or otherwise considered “emancipated”
According to the law, when the will was drafted, the maker had to be of “sound mind,” according to the law. It isn’t an onerous stipulation. Usually, a court faced with resolving a question of mental capacity requires only that the person who made the will:
- knew what a will does and that they were making one
- knew who they would usually be expected to provide for, such as a spouse or children
- understood what they owned
- was able to decide how to distribute their property
A person must have died before a will can be declared invalid by a court. Forgetfulness or even the inability to recognize friends doesn’t, by itself, establish incapacity.
Fraud or Undue Influence
A court can also declare a will void if obtained by fraud, forgery, or “undue influence.” This generally includes an evildoer in a position of trust, such as a caretaker or adult child, deceiving a vulnerable individual into giving the manipulator all or most of his property.
Contents of the Will
What distinguishes a document as a legitimate will? First, each state has its own requirements for what a will must include. The majority of states demand that the document:
- expressly state that it’s the will of the person who wrote it
- include at least one substantive provision, such as a clause leaving some property to someone or appointing a personal guardian for a minor child
- appoint an executor (called a “personal representative” in some states), the person responsible for carrying out the terms of the will when the time comes
In the presence of at least two adult witnesses, a written or computer-printed will must be dated and signed. In most states, witnesses cannot be those who are mentioned in the will to inherit property. (If a witness inherits, the gift to himself may be invalid, but not the rest of the will.)
Will does not need to be notarized to be legitimate. On the other hand, some wills include a “self-proving” affidavit (sworn declaration) that witnesses sign in front of a notary public, eliminating the need for the witnesses to appear in court later to declare that the will is genuine.
What Are the Steps in Challenging a Will?
Depending on your state, you may only have a certain length of time to dispute a will. When you receive notification of probate, it means the deceased has died, and their assets are being divided according to the will.
This period is known as the statute of limitations, and after it expires, you’ll be left with few legal choices.
File a Petition With Probate Court
If you want to dispute a will, go to the probate court in the county where the person died. A court clerk should be able to advise you and supply you with the necessary documents to start a will challenge. Our experienced will contest attorney can submit the claim for you.
Lawyers are expensive, and they may take a significant percentage of your cash gain. Our experienced will contest attorney, on the other hand, can save you a lot of time and work while also increasing your chances of winning the challenge (or warn you if it’s unwinnable).
Prepare for a Hearing
You should be aware that challenging a will may entail many of the same legal procedures as other civil lawsuits. You may be required to take a deposition and submit evidence on your behalf throughout the discovery process.
Our skilled will contest attorney will prepare to gather evidence to support your position and any other materials requested by the opposing counsel. You could even be called to the witness stand.
Contesting the will is unlikely to succeed, and it may cause probate to be delayed for months or even years. Some beneficiaries may agree to a settlement with you instead due to the delay.
The settlement will most likely be less than the amount you’d receive if you won your challenge, but it will save you legal money and help you avoid a lengthy probate procedure that might strain your family’s connection.
What Happens After the Will Contest?
You get possession of the assets you claimed if you win the will contest. This might include receiving a cheque for the money you’re due or having the estate executor or administrator transfer funds directly into your bank account. You will receive any real estate that you won in the sweepstakes.
However, if you lose the will challenge, you may forfeit other estate property that you are due. If the other beneficiaries file an appeal, expect another lengthy and expensive trial.
How to Prevent the Will From Being Contested?
If you’re the testator, check to see if your will can be challenged. That includes completing all legal requirements to eliminate ambiguities in the will, which may necessitate the use of a lawyer. Alternatively, you can follow the steps below:
Add a No-Contest Clause
The no-contest clause does not exclude anyone from contesting the will. However, anyone who mounts a challenge will be entirely disinherited if the challenge fails. Beneficiaries are discouraged from challenging a will simply because the quantity of their bequest is too small.
Make It Self-Proved
The notarization of your will is not needed by law. A notarized will can still be produced under duress. Therefore notarization is merely the first step. You can, however, include an additional document that “self-proves” the will, making the challenge considerably more difficult.
Make Your Assets Payable on Death
You can name beneficiaries to your savings and retirement accounts so that they will be paid out if you die. As long as the recipient is alive, payable-on-death accounts (also known as transferable-on-death accounts) do not go through probate. Therefore the beneficiary has a claim to them regardless of the will.
Protecting Your Rights and Interests
Challenging a will can split families apart. Sibling rivalries and old grudges can reawaken and devastate family unity, leading to a costly court battle. However, you must act if your financial well-being or the fate of your heirs is in jeopardy.
Attorneys at the law firm of Michael O. Brien & Associates have extensive experience in will contests, undue influence in will drafting, and allegations of inheritance fraud. We have the experience, knowledge, and resources to preserve your rights and inheritance, whether you want to defend a will or challenge its validity.
As your powerful champion, we will work tirelessly to safeguard your rights and inheritance.