When You Can Contest a Will

You had a loving relationship with your mother and she always said she would leave everything to you and your siblings, but after she died, you discover she had recently written a new will, leaving everything to a housekeeper or one of your siblings. Is there anything you can do? If you believe a loved one's will is not valid, you may be able to contest it. But proving a will is invalid is difficult and this process should be undertaken only if you are sure there is something wrong.

Interested Party. Only certain people can contest a will. For example, you can't contest your friend's will just because you believe she shouldn't have left her estate to her niece. You must be an "interested party." This means you would have inherited from your loved one if there was no will, you are a beneficiary of the current will or you were.

In addition, you cannot contest a will solely because you think the distribution is unfair. A will can be contested only in certain circumstances; there must be evidence that something is wrong with the will. The following are the situations in which a will may be contested:

Mental incapacity. You may contest a will if you believe your loved one did not have the mental capacity to write the will. The best way to prove this is with a statement from a doctor who examined your loved one around the time he or she wrote the will. You may also use medical records and other witnesses who were around your loved one at the time.

Undue Influence. If you believe another person exerted undue influence over your loved one and induced your loved one to change the distribution under his or her will, you may contest the will based on undue influence. Generally, the person contesting the will is required to prove the person exerted undue influence. However, if the person had a fiduciary relationship with your loved one, that person may have to prove that there was no undue influence. People who might have a fiduciary relationship include a child, a spouse, or someone with a power of attorney.

Fraud. Arguing your loved one was fraudulently induced into signing his or her will is another way to contest a will. Fraud occurred if your loved one signed a will without realizing it was a will. It could also happen if someone gave your loved one misinformation that caused him or her to change the distribution in the will.

Not Executed Properly. Finally, a will may be invalid if it was not executed properly. Each state has laws dictating what makes a will valid. Usually, the signing of the will must be witnessed by independent witnesses. If the document was not witnessed properly, it may be invalid.

If you want to contest a will, you should contact our office immediately because you will need to file a claim with the court within a short period of time. If you are an interested party, you should receive notice from the court that the will is being probated.

If you are successful in contesting a will, the court may reinstate your loved one's prior will. If there is no earlier will, the estate may pass under the state's intestate succession laws. Another alternative is for the court to invalidate just the portion of the will that is invalid, leaving the rest intact.

Colorado law does recognize other ways to challenge the distribution of property under a will. This may be by a claim against the trustee, personal representative or agent under a power of attorney for a breach of fiduciary duty or by tortuous interference with an inheritance. We will discuss these rules in the next newsletter.

Call (720) 200-4025 now or email us to find out how our attorneys can help with your need to Contest a Will.