How Do I Contest A Will?

How Do I Contest A Will In Utah

Wills in Utah pass through the probate process in one of two ways: either formally or informally. The distinction is a matter of an in-court hearing. A more complicated estate that requires a hearing to open or close probate is formal. Probates that dispense with hearings because an estate has limited assets are informal. You cannot challenge formal probate after it is closed. However, if the probate process is informal, you can contest the will up to three years after the decedent’s death. The executor of the will decides whether probate will be formal or informal.

• File a petition with the probate court to request a formal testacy proceeding. Under Title 75 Section 3-401 of the Utah Legislative Code, you can either ask the court to set aside an informal probate that has already been closed or you can ask that a probate in process be stopped from closing until you explain your objections to a judge. You must state your reasons for objecting in the petition.

• Serve notice to all interested parties that you have filed a petition to either block or reopen probate. Title 75 Section 3-403 of the Utah Legislative Code lists exactly who you must notify, but in general, it includes the decedent’s spouse and children, any more distant relative who would be in line to inherit under Utah’s laws if the decedent had died without a will, everyone named in the will and the executor of the estate. Utah also requires that you publish a notice in a newspaper for anyone with rights to the estate who you may not know about or anyone whose current address you don’t know.

• Appear at the testacy hearing when the court assigns a time and place. You might have a great deal to lose if you cannot convince the judge that your objection is reasonable, so even if you have represented yourself up to this point, you should consider hiring an attorney to appear with you in court. For instance, some people put clauses in their wills that if any of their beneficiaries contest and lose, they receive nothing, not even a nominal bequest they might have received otherwise. But under Title 75 Section 2-515 of Utah’s Code, you cannot be punished if you win your contest or have a legitimate reason for objecting. For example, a penalty clause is unenforceable if you are objecting to the will because you have a more recent, valid one in your possession. It is only enforceable if you claim that the decedent was incompetent when he made his will and his estate can prove that he was not.

Grounds For Contesting A Will

• Before learning how to contest a will, it is necessary to understand what constitutes a valid will. So the first question is – is there a valid will?

• Expressly revoke all previous wills and codicils (Even if there are none);

• Appoint a personal representative;

• Appoint a guardian where minor children are (or may be) involved;

• Provide a formula or method for distributing your property.

Your will may also want to include information such as: Provisions leaving specific items to specific people; Wishes concerning funeral and burial arrangements; Waiving of any requirement of a bond for the personal representative. Additionally, the will should be signed by the testator (The person making the will) or in the testator’s name by an individual in the testator’s presence. It should also be signed by a minimum of two individuals who have signed after witnessing either the signing of the will or the testator’s acknowledgement of the will.

When a will is successfully contested, the testator’s/testatrixes prior will is then considered to be his/her will. If there was no prior will, or if the will is lost and no one has an executed, and valid copy of the prior Will, the testator is treated as if he/she died intestate (without a will.) If the person is deemed to have died without a valid Will, the court will then distribute the estate to those who would take the estate assets on an intestacy basis. A noted previously, a will has to be in writing, in the correct form, and executed according to the laws of the State, in order to be valid. Most of the cases contesting wills emanate from issues dealing with improper form or execution of a will, and the majority of the time, involve wills that were prepared by individuals instead of attorneys.

Reasons to Challenge or Contest a Will

It is typically very difficult to challenge a will. Approximately 99 percent of wills pass through probate without issue. Wills are seen by the courts as the voice of the testator, the person who wrote the will. Since that person is no longer here to speak about his or her wishes, the courts stick pretty stringently to the will. Anyone who may have an interest to gain from the will can challenge a will. The most successful challengers are usually the spouses, and the most successful grounds are that the person lacked testamentary capacity or that the person was unduly influenced or persuaded to write the will a certain way. If you challenge a will and are successful, it can be voided in its entirety or just in part. Sometimes, a prior provision, such as from a previous will can be reinstated. If the entire will is voided, the court will distribute the property as if no will had ever existed. This distribution follows intestacy laws, and is guided by familial relationships.

Testamentary Capacity

The law requires that only adults 18 years of age or older have the capacity to create a will. Minors lack the capacity to form a legal will. However, in some jurisdictions, minors who serve in the military or minors who are married are given the right to make a will. Adults are presumed to have testamentary capacity. When litigation arises that challenges an adult’s testamentary capacity, it is usually on the basis that the adult has senility, dementia, insanity, was under the influence of a substance, or in some other way lacked the mental capacity to form a will. Basically, to challenge a will based on mental capacity, you must show that the testator (the person who created the will) did not understand the consequences of making the will at the time of the will’s creation. More specifically, the person must understand:

• The extent and value of the property;

• Who he or she is expected to provide for and who the beneficiaries of the will are;

• The disposition he or she is making and what a will means; and

• How these elements relate in order to form a distribution of property.

Fraud, Forgery, and Undue Influence

You can challenge a will by showing that the will was procured by fraud, forgery, or undue influence. This usually involves someone manipulating a vulnerable person into leaving all or much of the property to the manipulator. The term “undue influence” merely means that the person lacked the free will to bargain because of the manipulator. If the executor is trying to carry out the provisions of an outdated will, the newer will can trump this older will. Typically, there are requirements to destroy the older will. It is best to always destroy or show intent to void any outdated will, should one decide to change or update his or her will. Many people even state in the new will that the will is intended to trump and/or void out the previous will. This is why dating the will documents is so important. The court’s interest is to fulfill the wishes of the testator. If a valid legal will surfaces that is dated more recently than the will being executed, the court is likely to follow the newer will. Each state varies as to what constituted a voided and updated will, so be sure to check with your state’s laws.

Sufficient and appropriate witnesses

A typed hard copy of the will must be dated and signed by the testator in the presence of at least two adult witnesses. Vermont requires three witnesses. Most states require that the witnesses not be people who are named as heirs in the will. If in one of these states, a witness is named in the will; his or her gift may be voided, but not the rest of the will. About half of the states do allow handwritten, unwitnessed wills. These are called “holographic” wills and they must be written and signed entirely in the testator’s handwriting and in some states, they must be dated. Holographic wills are the easiest wills to challenge, because there are no witnesses. In the case of a holographic will, the court must be convinced that the entire thing is in the testator’s handwriting and that it was created to serve as a will of the testator.

The Will’s Provisions

Each state has its own laws about what a valid legal will must contain. Most states require that the will:

• explicitly states that it is the testator’s (the person who created it) will;

• includes at least one substantive clause, such as leaving a certain piece of property to a certain heir; and

• appoints a personal representative (executor or executrix) to be responsible for invoking the terms when the time comes. In many states, the court will appoint an executor and enforce the will, even when the will names its own executor.

Self-proving affidavit

There is no requirement that a will should be notarized. However, many people include a self-proving affidavit in their wills. This is a sworn statement that the witnesses sign in front of a notary public, which relieves the witnesses of having to come to court later to swear to the validity of the will

Residence of the testator

As long as the will was valid and legal according to the laws of the state where the testator had his or her permanent home, then the will is valid in any state where the testator dies. A will can be very beneficial to a descendant’s family and loved ones, but there are times when a will should be given a second look and possibly amended or scrapped. If you believe one of more will provisions shouldn’t be enforced, you may want to get the opinion of a legal professional. Get started today and find an experienced, local estate planning attorney. Not everyone can contest a will. A lawsuit brought to challenge the validity of a last will and testament can only be filed by certain people who would be personally and financially affected by the will’s terms if it were to be accepted by the court as it is. In legal terms, these people are said to have “standing.”

Disinherited Heirs-at-Law

An heir-at-law is someone who is so closely related to the decedent that she would have received a share of the estate if the decedent had died without a will. Heirs-at-law have standing to contest a will. Property passes to heirs-at-law in a process known as “intestate succession” when someone dies without a will. In most states, this means his spouse or direct descendants inherit first. Direct descendants include his children or grandchildren. Parents and more distant family members, such as siblings, would only inherit if the decedent wasn’t married and left no living children or grandchildren. If a decedent was survived by three children but only two are provided for in his will, the third child should have legal standing to file a will contest. But this doesn’t necessarily mean she would win the case. She can’t challenge the will simply because she has standing and she wasn’t named in it. She must have cause. This means that she would have to establish to the court’s satisfaction that the deceased didn’t intentionally cut her out of the will, or that will isn’t valid for some other reason. Perhaps the deceased was under duress or was mentally incapacitated at the time he wrote it. The will might subsequently be thrown out due to its invalidity, and the estate would then be distributed as though the deceased had died intestate or without a will.

Beneficiaries and Fiduciaries in a Prior Will

Any person or entity named in an older will would have sufficient legal standing to contest a more recent will if he has subsequently been cut out of the recent document. He would also have standing if his share of the estate was reduced. Likewise, if the individual was named as fiduciary or executor of the estate in the first will, but he’s been replaced in a subsequent will, he should have adequate standing to challenge the more recent last will and testament. The same caution applies. These people would have to establish that the subsequent will is invalid for some reason.

Who Can’t File a Will Contest?

You most likely don’t have legal standing to file a will challenge if you weren’t named as a beneficiary in another will, or if you’re not an heir-at-law. This is the case even if you suspect that the will is invalid.
Minors typically cannot contest a will because they lack the right to initiate any legal proceeding until they reach the age of majority. Most states permit a parent or guardian to challenge a will on a child’s behalf, however.

No Contest Clauses

A potential complication is that some wills include no contest clauses. These state that beneficiaries will lose the inheritance the will gives them if they unsuccessfully challenge it, losing the will contest in court. Otherwise, the court’s verdict would prevail. Of course, a beneficiary really has nothing to lose by challenging the will if she’s been cut out of it entirely.

What Should You Do?

Will contests are a complex area of law. Consult with a lawyer who specializes in this type of probate matter to find out if you have legal standing and if you have possible grounds—a supportable reason why the will should be overturned.

Will Contest Lawyer In Utah Free Consultation

When you need a probate lawyer to contest a will in Utah, please call Ascent Law LLC for your free estate law consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

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How Do I Contest A Will In Utah?

How Do I Contest A Will In Utah

I will define a will contest as a lawful challenge to the authenticity of an estate plan. It is not uncommon for beneficiaries of the estate of a deceased person to disagree with the purported wishes of their mother or father. The disgruntled person is usually the one who feels what has been allocated to him is less than he should have. If he manages to contest successfully, he will receive a bigger portion of the estate than what was originally assigned to him. Remember that you should stage a will contest only after the owner of the estate passes on. Read on for deeper insight into who is eligible to contest a will, legal grounds for contesting a will, the procedure to follow when contesting a will, and the cost implications of contesting a will.

Who may challenge

Of course, not every Tom, Dick and Harry has the right to contest a will. To do so, you must be an interested party in the estate plan. In other words, a portion of the estate under contest must have been allocated to you. You are contesting because you are likely to lose something if the will is executed as written. Statistics have it that spouses of the deceased are the ones most commonly involved in will contests. Children, parents, and relatives of the deceased have also been involved in will contests.

Grounds for contesting a will

We shall look at six legal grounds for contesting a will. These include:

1. Lack of testamentary capacity

2. Lack of valid execution

3. Lack of knowledge and approval

4. Undue influence

5. Fraudulent or forged wills

6. Rectification and construction claims

Lack of testamentary capacity

Utah law clearly stipulates that the testator must be of a sound mind at the time of writing and signing a will. The will is only valid when the testator:

– Is aware that he is making a will and knows the consequences of the will

– Knows the actual value of his estate which he intends to distribute among the named beneficiaries

– Knows the repercussions of including some beneficiaries in the will and leaving out others

– Is free from any medical condition that may cause him to make irrational decisions

This is normally the first port of call whenever you think of contesting a will. Ask yourself, “Did the testator have testamentary capacity?” If the answer is No, you are good to go on with the contest.

Lack of valid execution

There are a number of legal requirements that a will must meet in order for it to be legally binding. Some of the requirements concern the testator while others concern the will itself. If a will does not meet any of these requirements, it is said to lack due execution and thus can be legally contested. Below is an outline of some of the legal requirements that the will must meet.

– The testator must identify it as a will

– The testator must revoke all previous wills and codicils

– The will must be in writing

– The will must be signed by the testator, or in the event that the testator is unable to append his signature, he may direct some other person to sign on their behalf, provided that the testator is present as the will is being signed.

– The will must be signed by two witnesses. These witnesses should be present as the testator or his representative signs the will.

– The testator should appoint a guardian where minor children are involved.

– The testator must provide a formula for sharing the estate.

– The testator must be over 18 years of age.

Allow me not to get into the finer details of who can or cannot act as a witness to a will. I find it worthwhile to mention at this juncture something about revoking a will.

The testator, while alive, has the option to revoke a valid will. This can be done in a number of ways. The most obvious is changing the contents or adding to the contents of the will before passing on. This is possible provided the testator is still mentally capable of doing so. The change here does not imply crossing out details on the original will and scribbling in new ones. The testator has to follow all the legal procedures as was required in the original will. Another option is to write a whole new will. In such a case, every page of the old will has to be signed “revoked”. The revoked will should be kept as such so that nobody later on mistakes it as a lost will. A more interesting method involves tearing up the old will in front of the lawyer and signing the new will.
So make sure the will you want to contest is not a revoked will.

Lack of knowledge and approval

The testator must understand the contents of the will and approve them. In case you have doubts about whether the testator really understood the contents of the will, you can go ahead and dispute the will. Be prepared to prove that the testator did not fully comprehend the contents of the will.
You can also object the will if you sense that it was prepared under suspicious circumstances. Take for instance a situation where the person who drafted the will has awarded himself a generous share of the estate. It might be that the testator signed without full knowledge of what was contained therein.

Undue influence

You may rightfully suspect that the testator was unduly influenced when making the will. If you have facts on the exact culprit who wrongly influenced the testator, you can choose to contest the will in court.
Note that this is a tricky ground for contesting a will. You must have concrete evidence that such and such a person coerced the testator to distribute his wealth as he did. There should be no other way of explaining why the wealth was distributed in such a manner.

Fraudulent wills and forged wills

Fraud takes many forms. One of the sons of the deceased may prepare a will and forge the signature of the deceased. The contents will almost definitely be in favor of the fraudster. Such a will may be contested if you have concrete evidence of the forgery claims.

Rectification and construction claims

There are instances when the person drafting the will may have made errors. This may be as a result of not grasping the intentions of the testator. If you detect such errors, you may contest the will on the grounds of professional negligence.

In this sense, you may also request the court to reconstruct the will in case the words used therein are ambiguous.

With any of the above-mentioned reasons, you may now move on to the process of contesting the will. I will outline below the three basic steps you should follow. One more thing to put into consideration is the case of no-contest wills.

Steps of contesting a will

You first have to file a petition with the probate court, requesting an official testacy proceeding. You have two options here – you can either request the court to do away with an informal probate which has already been closed or request them to put a halt to a probate that is in process until you air your objections. The petition must include the objections.

After filing the petition, you have to notify all the interested parties that you have filed a petition to reopen or block the probate. You can check more details of all the persons to notify in Title 75 Section 3-403 of the Utah Legislative Code. In a nutshell, the most common persons are the spouse and children of the deceased, followed by close and distant relatives. The aim here is to inform all those persons who would have fallen heir to the estate of the deceased had he died without writing a will, the beneficiaries specified in the will and the administrator of the estate.

In addition to direct contact, the law also requires you to publish a notice in the local newspapers so that your intentions to contest the will may reach anyone with rights to the estate but whose contacts you do not have.

The court will contact you and give you the specific date and time you should appear at the court. Prepare very well beforehand so as to convince the judge that your petition is valid. It is always advisable to hire an attorney to guide you through this process. An experienced attorney has probably handled several such cases and is well equipped to put meaning into your claims. As an individual, you may not have the wording and convincing abilities required to state your case.

Some clauses in the will also require expert advice. Take for example a testator who specifies in his will that any beneficiary who contests the will and loses should receive nothing at all. This is called the no-contest clause. Some no contest clauses also specify that the beneficiary who files a petition to contest the will and loses will have to pay the attorney’s fees and all the costs for the two sides of the case. How do you go about this? Do you cower and abandon your intention to contest? This is where an attorney comes in.

It is worthwhile to note that the other party will most definitely appear in court with his attorney.

Costs to contest a will

No litigation is cheap. No litigation comes without cost implications. Be ready to spend some generous amounts on legal fees and such. What more, will contest can really drain you financially because of the number and nature of investigations required. They are generally more expensive than other forms of litigation.

Remember that the costs will greatly be determined by the court. The loser(s) of the contest may be required to pay the winner(s) the costs involved in the case.

Do not fall prey to the misconception that the costs will be covered by the estate under contest. This is not true. Be ready to foot the costs from your pocket. You will only get the payback when you win the contest.
This general rule has the following two major exceptions:

1. In case the testator or the interested persons are the cause of the contest, the costs will be funded from the estate in case the contest is lost.

2. In case the contest necessitated investigations regarding the will, the costs incurred by the two parties will be covered by those who incurred them.

The worst scenario comes when the costs involved in the contest are higher than the value of the estate. This outrightly means that you lose big. It is therefore in order to really weigh the costs versus returns before setting out to contest.

Remember the contest is not a 1 day thing, nor a 1-week or a 1 month thing. Contests normally run for up to one or one-and-a-half years. You may, therefore, incur thousands of pounds in this process.

Utah statistics have it that only about 5% of cases filed proceed to trial. The other 95% of cases end in mutual agreement by both the parties.

After the hearing of the case, the judge may rule that the will is entirely invalid or partly invalid. In such a case, the property of the deceased is distributed according to the intestacy laws. Generally, the wealth is distributed to the spouse and children. In case they are not there, the court may consider the close relatives, and finally the distant relatives.
Succeeding to contest a will is such relief. After the months of hard work, it is only good you get the portion of the estate you deserve.

Will Contest Lawyer Free Consultation

When you need legal help fighting about a will in court, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We can help you with Probate Law. Will Contests. Estate Planning. And Much More. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews

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