Suppose you have a loved one who has passed, and all of a sudden there is a brand-new last will and testament that either greatly reduces your share or leaves you out completely. What do you do?

A Common Scenario for Contesting a Last Will and Testament

Here’s an example of a common situation. As an only child, Katie enjoyed a great family life with her loving parents. Sadly, Katie’s mother was diagnosed with a terminal illness and passed away. Years went by, and Katie’s dad got remarried. By this time, Katie was a young adult, living on her own. She didn’t really get to know her new stepmother and younger stepsister, who moved in with her dad. A year later, Katie’s father was in a serious car accident. He eventually slipped into a coma and died.

Katie had assumed that she would inherit most of her father’s estate. However, she was shocked to discover that a new last will and testament left her with only 25%, and the rest to her stepfamily. Katie suspected that her stepmother had forged her dad’s signature on the new will while her dad was in the hospital. Katie was not going to let her stepmother “rob” her of her rightful inheritance. So, Katie decided to take legal action and contest the last will and testament.

How You Get Notified of a Last Will and Testament

When someone dies, the original will is “probated” and submitted to the Register of Wills office in the county where the decedent resided. When the original will is probated, both the new beneficiaries and all of the “intestate heirs” will receive notice of the new last will and testament.

Intestate heirs typically include the surviving spouse and the decedent’s children. If you are an intestate heir you will be notified of the opening of the estate. If you are not an intestate heir (i.e. more remote relative, stepchild, etc.), you may not receive notice that the Register of Wills is probating this new will.

Contesting a Will Now or Never

It is incumbent for you to challenge the last will and testament in a timely fashion. Otherwise, your right to contest the last will and testament will be waived (a most unfortunate circumstance). This means that if you do not file action to challenge the new will in a timely fashion—even if you did have the best case to overturn the last will and testament—then you will have forever lost the right to challenge the will.

Four Ways to Contest a Last Will and Testament

Once you are at the point where you believe the last will and testament is invalid (for example, the decedent was not competent to sign the document or there is no way he/she would sign this document), you need to understand that there are four basic methods to invalidate the last will and testament. Each of these are independent rights to challenge the last will and testament.

1. The signature is fraudulent.
   If the signature is a fraud, then typically we would need a handwriting expert to analyze the signature, along with a good number of signatures that we know are valid.
2. The last will and testament was not executed properly.
   For a last will and testament to be executed properly, the signature must be witnessed, and there must be two witnesses to this signature. Common issues are that the witnesses were not present when the signature was made or that someone else signed on the decedent’s behalf. Execution issues are common when the last will and testament was obtained online.
3. The decedent was incompetent at the time it was signed.
4. The decedent was subject to undue influence at the time it was signed.

If the decedent was incompetent or subject to undue influence, the path to invalidate the last will and testament is more complex. It’s important to have eyewitness observations of the decedent (i.e. the decedent did not drive, could not dress himself, often repeated sentences, forgot what was talked about 10 minutes later, made bizarre accusations of people stealing items, no longer cared about paying bills, etc.). Ultimately, however, we will need to obtain the medical records of the decedent.

In order to get the medical records of the decedent, a challenge to the last will and testament needs to occur. Once this process begins, a subpoena may be issued to the hospital, nursing home, assisted living facility, or physician’s office at issue. It is certainly important to know which place is at issue.

Once we get eyewitness testimony and receive the medical records, we have an expert review all of this information. The expert will verify if the information is sufficient to determine if the decedent was incompetent or subject to undue influence. Undue influence is a seven-factor test, with the most important factor being if the decedent was in a weakened physical or mental state. It is important to note that incompetency is a higher standard to meet than undue influence.

Even with the expert opinion, we need to convince the court that this evidence rises to the standard of incompetency or undue influence.

Attorneys Help Protect Your Loved One’s Intentions

Unfortunately, it is not uncommon for someone who is in a weakened condition to be preyed upon by others who seek financial advantage. It is up to you to fight back to protect your loved one’s true intentions. We’re here to help you.

When you consider contesting a last will and testament, you might also have to consider contesting changes to certain additional assets—for example, an account that has had a change in beneficiary designation or a change to joint account status.

A Common Scenario for Contesting a Last Will and Testament and Beneficiary Change

Let’s go back to the example of Katie’s situation. Katie discovered that the beneficiary designation of her father’s savings account had been changed. The beneficiary was no longer Katie—it was now her stepmother. Katie was afraid that her stepmother would start spending all the money in her father’s savings account. So, Katie needed to take legal action immediately to contest both the last will and the saving account’s beneficiary designation change.

Probate Assets vs. Non-Probate Assets

Challenging a last will and testament only impacts those assets that are “probate assets.” Probate assets need a court-supervised probate process in order to get passed on to the beneficiary. Non-probate assets can be given directly to the beneficiary without a court process.

An account is likely to be considered a “non-probate asset” if:

• The account has a changed beneficiary designation or
• Right before the decedent’s death the account was changed to a joint account

If there are problems with non-probate assets, then challenging the last will and testament is not your only concern. You will also need the Circuit Court to determine if the change in beneficiary designation or the creation of the new joint account is valid.

Four Ways to Contest a Last Will and Testament and Beneficiary Change

The four ways to contest a last will and testament also apply to beneficiary changes:

1. The signature is fraudulent.
2. The document was not executed properly.
3. The decedent was incompetent at the time it was signed.
4. The decedent was subject to undue influence when the document was signed.

Did a financial power of attorney change the beneficiary?

It is common for a financial power of attorney to change a beneficiary designation. It is important to know if that is the case in your situation. If so, then the issue becomes whether or not the financial power of authority had the authority to make the change. Sometimes the financial power of attorney signs documents when their power of attorney is invalid. Or sometimes the power of attorney exceeds their authority, which would invalidate their change in beneficiary designation.

Contest the Beneficiary Change Before It’s Too Late

If you’re going to contest a change in beneficiary designation or the creation of a new joint account, then you need to consider the timing. While there is the normal statute of limitations to file for Circuit Court relief, a would-be beneficiary could have access to the account as soon as they acquire the death certificate. Then, nothing would prevent them from spending the account’s money.

If you wait too long to file an action in the Circuit Court, then you could face this situation: you win the case, only to see that the money has already been spent. Then you have to engage in collection efforts against the wrongdoer.

The better course would be to immediately file suit to put the wrongdoer on notice. It would also make sense to ask for “injunctive relief” to freeze the account. However, this often requires immediate action after the decedent passes.

Lawyers Help to Contest a Will and Beneficiary Change

Challenging a beneficiary change or a change of an account to joint ownership status can be a complex area of the law. These challenges should only be considered by experts in this area of law. It is important to know what to expect.

For some families, it is unclear in the beginning if they have a rock-solid case, but they have strong suspicions that wrongdoing occurred. In those cases, it is not unusual to engage in litigation to obtain the needed bank account information (i.e. signature pages) and medical records in order to formulate an opinion after this information is obtained.

Often, it is only through litigation that you will be able to access the information that is critical to winning your case. It is not uncommon to see beneficiary designations changed once a decedent was in a weakened condition. Let us fight with you to correct this wrongdoing.