Probate litigation typically arises when a family member or another interested party challenges any part of the decedent’s estate plan. In such a situation, a normally straightforward probate process can turn into months and even years of expensive wrangling.
Considering your estate planning with an eye to likely sources of conflict can help you take steps to decrease the chances of future litigation. A qualified attorney can provide advice and strategic options to help avoid problems.
Why people sue
One common cause of probate litigation is that a family member believes the will does not treat him or her fairly. However, someone not liking how you choose to distribute your assets is generally not a cause of action. Thus, in such cases, plaintiffs tend to allege testamentary incapacity or undue influence.
Testamentary incapacity
A claim of incapacity essentially states that the decedent, at the time he or she made the will, was not able to understand the extent and type of the assets in question, did not recognize his or her familial relationships, or did not understand what it means to leave someone an asset in a will. While findings of incapacity in other areas or diagnoses of cognitive conditions do not equal a conclusive finding of testamentary incapacity, courts can take them into account as evidence.
If you believe it may be possible to cast doubt on your mental state at the time of making your will, you can take steps to create evidence you knew what you were doing. Some people choose to undergo a psychological and cognitive assessment by a qualified medical professional specifically for this purpose.
Undue influence
In other situations, claims of undue influence may arise. This tends to happen when the testator disinherits someone who would reasonably expect to inherit, or leaves a disproportionate amount to a distant relative or outsider and leaves closer relatives with little or nothing. While you have every right to make this choice, you may expect it to be challenged with allegations that this beneficiary effectively overrode your free will took over your decision-making. Consulting your attorney can help you figure out an approach to protecting your wishes.
