When an individual passes, and a will is present, it is the responsibility of an estate administrator  to ensure estate taxes are paid, debts are paid and the distribution of the will is executed properly.  The administrator files a petition with the Court of Chancery to  admit the will to probate and name an executor of the will. If a an heir or beneficiary has an objection to the petition, he or she may have the opportunity to do so during the hearing. This will be the first such opportunity and those contesting a will should know that the process of contesting a will can be both pricey and lengthy. Like nasty divorce cases, when money and animosity get together, the likelihood of a civil resolution often diminishes.

What to Know

Establishing Standing – A person contesting a will must have a belief that their rights to the estate have been impacted in some way. In this manner, they must show cause for the contesting of the will in order to move ahead in any fashion. As an example if a daughter felt her father signed a will while suffering from a condition which caused him limited mental capacity, she may have standing to contest the will in question.

Reasons One May Contest a Will

Was the document properly signed?

The will is not properly signed in the State of Delaware in order to be valid. In our state, you must sign your will in front of two witnesses who must also sign. If a will is not done in this manner,

Did the creator of the will lack mental capacity at the time they signed it?

In order to sign a will, a person must have mental capacity to understand what assets they hold and who will receive those assets upon death. In cases of contested wills, it is not uncommon for beneficiaries to note that the deceased had been suffering from a condition such as dementia or Alzheimer’s.  Medications for long-term illnesses are another common factor. Ultimately, a determination must be made by the court. In matters like these, often witnesses must be called to attest to the capacity of the deceased at or around the time of the will’s creation. This process often takes multiple depositions from friends, family and expert witnesses.

Was there undue influence?

In cases in which undue influence is alleged, it means that an individual has exerted so much control over the deceased, that the deceased may not have possessed the free will to make decisions for him or herself. Generally, a relative or caregiver develops a close relationship with the deceased while isolating him or her from other friends and family. Often these people will take advantage of an ill or elderly relative during a vulnerable period.

Making a Choice

If you feel that you are in a position to contest a will, you will want to act fast. Call the attorneys at Giordano, DelCollo, Werb & Gagne so that we can help you to determine if you have standing and help you determine the best way forward from there.