When to contest a will

| Nov 3, 2017 | Wills |

Litigation can outlive a person who made a will. In a Michigan will contest, a beneficiary can file a legal challenge to the will’s validity. These challenges can take place before probate or after probate opens.

An unsatisfied heir or beneficiary must have standing, a financial stake in the estate, to challenge wills. This means that the challenger is a person who is entitled to receive an inheritance even if the person is not named in the will. These include a person named as a beneficiary in the estate or a person who may have a legal right to inheritance in specific order, known as an heir-at-law.

A creditor can also contest a will if the decedent owed the creditor money. The will’s existing terms must also prevent payment of this debt. Challengers must also have legally supportable grounds or reasons for the challenge and that the will’s terms should not be enforced. These include the decedent lacking the mental capacity at the time the will was drafted and undue influence or fraud.

Procedural grounds such as having an inadequate number of signing witnesses, may be argued. Locating a more recent will indicating that the decedent intended to revoke the first will is another reason. A pre-probate challenge, a caveat, notifies the public and the probate court that the decedent’s last will and testament should not be admitted to probate. The filer of this action, known as the caveator, will receive notice a copy for probate administration when the will is presented for probate.

The caveator is entitled to respond to the petition before the will is admitted to probate. This usually occurs at a hearing where the caveator may present reasons that the will should not be honored.

Challenges can also occur after the opening of probate. The estate’s personal representative or executor has the legal duty and power to settle the estate after the will was admitted to probate. This includes sending notification of the probate proceeding to the beneficiaries identified in the will.

The personal representative may also send legal notice to anyone else who has an interest who may file a will contest but who are not named in this document. These include heirs-at-law or beneficiaries or fiduciaries named only in an earlier will.

An attorney can draft wills that help prevent challenges. They can also provide guidance on challenging wills.

Source: The Balance, “What is a will contest and when can it be filed?” By Julie Garber, Accessed Nov. 1, 2017