If you recently lost your mother, you are undoubtedly trying to come to grips with your loss while simultaneously dealing with the practical ramifications of her death. If something about her Will does not sit right with you, you may be considering a Will contest. Before deciding to contest your mother’s Will, you should consult with an experienced Phoenix probate lawyer. In the meantime, however, the Phoenix probate attorneys at Morris Hall PLLC explain some factors you should consider if you are thinking about contesting your mother’s Will.
Do You Have Standing?
One of the first considerations when discussing a Will contest is whether you have “standing” to initiate the litigation. Standing is the legal term that essentially means you have the legal right to bring the action in question. In the case of a Will contest, only “interested” persons have standing. An “interested” person could be a legal heir of the estate, meaning someone who stands to inherit if there was no Will, a beneficiary under the current Will or under a previous Will, or in some cases even a creditor of the estate. It is not only individuals who can contest a Will. A charity or corporation, for example, might even have standing to bring a Will contest. Given that the decedent in this case is your mother, you would be a legal heir to her estate, meaning you do have standing to contest the Will.
When Can You Contest a Will?
Each state decides its own time frame within which a Will must be contested. The reason for this is that, at some point, the decedent’s estate assets must be transferred to the new owners without the threat of an ownership challenge hanging over their heads. In Arizona, you usually only have 30-90days after the Will has been accepted for probate; however, there are factors that could extend that timeframe.
Do You Have Legal Grounds on Which to Contest the Will?
You cannot allow your emotions to guide your decision to contest the Will, if for no other reason than because the law requires actual legal grounds. Specifically, the law requires a contestant to allege, and eventually prove, grounds on which the Will can be declared invalid. Being unhappy with the terms of the Will and/or with your inheritance are insufficient grounds on which to contest a Will. In New Hampshire, the following grounds may be used to contest a Will:
- Superseding Will. This refers to another Will that you believe was written after the one admitted to probate.
- Improperly witnessed. Most states, including Arizona, require a Will to be properly witnessed at the time it is executed.
- Lack of testamentary capacity. This refers to the Testator’s mental capacity to execute the Will at the time of execution.
- Undue influence. This occurs if someone took away the free will of the Testator and substituted another’s will for his.
- Fraud. Including the intentional concealment of a material fact as well as a false statement of a fact.
Is There a No Contest Clause?
Finally, you should consider the consequences of challenging the Will if the Will contains a “no contest” clause. A “no contest” clause is a provision in the Will that disinherits anyone who pursues a Will contest. For a no contest clause to be effective, the potential challenger must be gifted something in the Will so that he/she has something to lose. In this case, if there is a no contest clause it means that you will effectively forfeit any inheritance your mother did leave you if you choose to pursue a Will contest and your challenge is unsuccessful.
Contact Phoenix Probate Attorneys
For more information, please join us for an upcoming FREE seminar. If you have additional questions or concerns about contesting a Will, contact the experienced Phoenix probate attorneys at Morris Hall PLLC by calling 888-222-1328 to schedule your appointment today.