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THE PROCESS
The process of challenging a will often varies from state to state. However, in all states, the challenge takes the form of a lawsuit, filed in either the probate court responsible for the will or in a general court. When filed in a general court, the lawsuit often takes the form of an appeal of a previous ruling by the probate court - either upholding or invalidating the will.
Whether in probate court or in general court, the will contest is an adversarial proceeding in which all parties have the opportunity to present evidence. Such evidence often includes testimony from witnesses who have personal knowledge of facts and circumstances that are relevant to the validity of the will. Such witnesses are usually people who knew the testator (friends and family), treated the testator (physicians, nurses and other health care providers) and/or provided services to the testator (attorneys, accountants, financial advisors). In addition to witnesses, each party may also produce documentary evidence such as contracts, medical records, videotapes, photographs, and correspondence.
Prior to the actual hearing in court, the parties have the opportunity to conduct "discovery." That is, parties are allowed to interview witnesses and review documents so they can prepare their respective cases. Witnesses are often required to give a deposition prior to the actual hearing. A deposition is an interview under oath and gives all parties the opportunity - prior to the hearing - to learn what the witness will testify to and to ask the witness questions about his/her testimony and/or relationship with the testator.
Whatever form the evidence takes, it must be relevant to the issues related to the validity of the will. For example, if one issue is the testator's mental competency when the will was signed, witnesses who can provide useful information about the testator's state of mind will help the court in its search for the truth.
Challenging a Will - Mediation and Settlement
Oftentimes, during the course of discovery and prior to the actual hearing, the parties will engage in settlement discussions and may, either by agreement or by order of the Judge, submit to mediation to explore whether the parties can settle their differences without the need for a formal trial. Because will contests often involve testimony that is conflicting and issues that are not clearly or easily resolvable, mediation can be a very useful and productive process for all parties.
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If you believe you have been wrongfully deprived of all or a portion of your rightful inheritance, you must act immediately to protect your rights. Please click here if you would like us to review your situation.
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