Herculean Struggle: Defending A Last Will and Testament

Family conflictIf you are the executor of a contested Will you need to know that the process will take time, money and an indeterminate amount of personal stress before it is over.

There is a ton of work that the named executor or executrix must performed if served with a complaint to contest the validity of a will after the will has been admitted into probate and notice given to all potential heirs.

Here is just the short list:

First, the executor should make contact with the attorney who drafted the decedent’s will because this attorney is an essential witness in defending the will against the plaintiff’s challenge. Although this attorney may be involved in defending the will, he or she can’t be the only attorney representing the estate because he or she is also a fact witness. In some instances, this attorney will have other members of the law firm who may serve as defense counsel. If not, you’ll have to find another lawyer who can represent the estate in defending the will.

As the proponent of the will, the executor’s attorney fees for defending the validity of the will are paid by the estate. The only exception is if an executor is found to have acted in bad faith and to have caused the last will and testament to be executed.

The attorney hired to defend the will then files an answer to the complaint. After that, the executor and attorney need to locate witnesses who may have relevant knowledge of the decedent’s health and mental condition when the will was executed. This may include the people who witnessed the execution of the will, physicians, family, friends and others who made observations of the decedent at that time.

After you find the witnesses, the next step is to start collecting and organizing documents that concern the assets of the estate. Then an informal accounting can be prepared as to those assets.

Typically, claims by a party contesting a will involve undue influence and lack of capacity. Both require witness testimony, medical records and maybe even an expert witness. Also, financial records may be relevant—along with other records concerning the health and mental well-being of the decedent at the time the will was executed.

Reference: The National Law Review (July 15, 2016) “Defending a Will Contest”


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