Common-Law Spouse's Right To Contest A Will

Contesting a will is a complex area of law, and while it is possible to do so, it is one that should be approached with caution. Probate attorneys are well-versed in this area, and it is a common matter for them to handle. There are many reasons why someone may want to contest a will, including if the will contradicts the deceased's known intentions or if there is evidence of fraud, forgery, or coercion. Intestacy succession laws also come into play, which means that if there is no will, the possessions may go to the decedent's heirs, usually the spouse and children. However, it is important to note that the odds of successfully contesting a will are small, and it can be a costly process.

Common-law spouses' rights to contest a will

In common law, a spouse is considered an heir and has the right to contest a will if they can prove that it does not accurately reflect the true intentions of the deceased. This is known as "testamentary freedom", as seen in the case of Ilott v The Blue Cross & Others [2017], where the Supreme Court gave weight to this freedom but also stated that the wishes of the deceased should only be overridden in cases of genuine need.

To contest a will, one must have legal standing, which means being named in the will or being able to show that you would have received something of value, typically money, if the person had died without a will. Common-law spouses can contest a will if they believe they have been excluded or that they are entitled to a larger share of the estate. They may also contest a will on the grounds of fraud, forgery, or if the decedent lacked mental capacity or was under undue influence when creating or changing the will.

It is important to note that the odds of successfully contesting a will are small, and one should consult an experienced estate attorney to determine the chances of a successful contest. Additionally, some wills contain a no-contest clause, which means that if a beneficiary or heir challenges a will and loses, they will be disinherited. However, not every state enforces these clauses, and it is essential to understand the specific state laws and requirements regarding will contests.

In terms of timing, it is crucial to act quickly as there are time limitations to file a challenge, typically starting when the probate process begins. For example, in Ohio, one must file a challenge within three months of the date a certificate of notice is filed with the probate court.

Overall, while common-law spouses have the right to contest a will, it is a complex and costly process, and one should carefully consider the likelihood of success before initiating legal proceedings.

Grounds for contesting a will

Contesting a will is possible, and it is one of the most common matters probate attorneys handle. However, a contested will is rare. The grounds for contesting a will may include:

• The will is not a genuine expression of the testator's intent.
• The will does not reflect the true intentions of the deceased.
• The will fails to make reasonable financial provision for the spouse and certain other classes of eligible individuals.
• The will is invalid. For instance, if it is unsigned, undated, or lacks witnesses.
• The creator of the will was not of sound mind when they drafted or executed the document.
• Someone other than the creator of the will signed the document.
• The will was altered due to undue influence, fraud, or forgery.
• Confusion arising from careless drafting, such as failing to clarify that a new will replaces a prior will.
• The will contradicts the known final intentions of the deceased.

Legal standing to contest a will

To contest a will, you must have what is known as "standing". Standing means you have a financial stake in the outcome of the case. A simple way to think about standing is to ask yourself whether you would receive a larger inheritance if the will were invalidated. If the answer is yes, you likely have standing. If the answer is no, you likely don't have standing. Parties with legal standing are generally referred to as interested parties. Interested parties in will contests include heirs and named beneficiaries.

Heirs are the most commonly named beneficiaries in a will. They include spouses, children, parents, siblings, grandchildren, cousins, aunts, uncles, and other extended family members. In Canada, a "spouse" includes a legally married spouse and a common-law spouse, i.e., someone who lived with the deceased for at least two years and was in a marriage-like relationship.

In addition to having standing, you must have valid reasons or grounds to challenge a will. These grounds may vary between state courts. Common grounds for contesting a will include:

• Evidence of fraud, forgery, or undue influence: You would need to provide evidence, such as copies of the original will or access to the testator's records with signatures.
• Lack of due execution: The decedent did not follow the rules when the will was executed, e.g., the will was not signed or notarized when state law requires it.
• Mistakes or an incomplete will: The will contains errors or was not properly finished.
• Lack of testamentary capacity: The testator was incompetent, subject to an insane delusion, or lacked the capacity to make a will due to their age or mental state.

Contesting a will: Costs and benefits

Contesting a will can be challenging and expensive, with costs varying depending on the specifics of each case. The process involves attorney charges, filing fees, notices and papers, and potential costs of litigation. While it is the right course of action if you doubt the validity of a will or believe it does not reflect the deceased's intentions, it is important to carefully consider the costs and benefits before embarking on this journey.

Costs

The cost of contesting a will can be significant, with attorney retainers typically ranging from $5,000 to $10,000. In addition to attorney fees, there are other expenses to consider, such as filing fees, the cost of sending official notices, and potential costs of litigation, including witness expenses and expert opinions. These costs can quickly add up, and it is not uncommon for the total expense to exceed $10,000.

Benefits

The primary benefit of contesting a will is the potential to uphold the true intentions of the deceased and ensure a fair distribution of their assets. This can be especially important if you believe the will is invalid due to factors such as the credibility of the tester, legal issues, or fraud. Additionally, a successful challenge may result in reimbursement of litigation costs from the estate's assets.

Other Considerations

It is important to keep in mind that contesting a will can be an emotionally challenging process for all involved parties. It may also impact relationships with family members and other beneficiaries. Therefore, it is advisable to carefully weigh the potential benefits against the financial and emotional costs before initiating a will contest. Consulting with a reputable will contest lawyer can help assess the strength of your case and make an informed decision.

Contesting a will: Time limits

Contesting a will is possible in the UK, and it is one of the most common matters probate attorneys handle. There are several grounds on which a will can be contested, including:

• If the will is suspected to be a result of coercion or undue influence on the testator.
• If the testator lacked the mental capacity to make or alter a valid will.
• If the will contradicts the final intentions of the deceased.
• If the will does not provide for the claimant financially.

In the UK, there are various time limits for probate and inheritance claims, depending on the individual circumstances of each case. Here are the key time limits to be aware of:

• If the claim challenges the validity of the will, there is technically no time limit. However, the court may decide that a claim has been brought too late, or that a claim is frivolous or an abuse of process.
• If the claim is being brought by a disappointed beneficiary, it must be made within 12 years.
• If the claim is being made under the Inheritance (Provision for Family and Dependants) Act 1975, or under the Inheritance Act for reasonable financial provision, it must be made within six months of the Grant of Probate or Grant of Letters of Administration. The court can extend this time limit if sufficient grounds are established.

While there is no time limit on contesting a will, it is recommended to do so as early as possible in the process. Contesting a will after probate has been granted is possible but can be costly and require additional legal advice. The process can take months or even years, and there is a potential for further delays if the will is contested.

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