Contesting a Will - What to Do When You Need to Challenge the Validity of the Document and Protect What is Rightfully Yours

There are many reasons why a person may want to contest the validity of a will... We regularly have clients visit our Colorado estate planning office with a number of common questions like these:

• Can I sue if I was cut out of a will and should have been included?
• What are my odds of winning?
• Will an attorney handle my case on a percentage basis?
• How long do I have to file a suit after someone dies?

A person has the legal right to contest a will as long as they have a vested interest in the will, which means they must either be one of the beneficiaries named on the will, or they must be a person who would have been considered a beneficiary in the event there was no will. Questions on the validity of a will must be filed in Colorado probate court within a certain number of days after receiving notice of the death or petition to admit the will to probate.

When the will is contested, the probate process tends to grind to a halt and the claims of invalidity by the contester must be investigated. This can take up a great deal of time and money and can throw the will proceedings off schedule completely.

However, any claim of contest by a person with a vested interest must be investigated thoroughly to ensure that the will is a valid one.

People may contest the will for reasons of validity only, not because of their own personal thoughts on whether their late Aunt June left them far less money than they deserved.

What are "acceptable objections" for contesting a will?

• Fraud: The person contesting the will may claim that the will that is going through probate is a complete fraud and must therefore be invalidated.
• Not up to date: The person contesting the will may claim that there is a more up-to-date one and that the one being used is old and therefore invalid. The contester may even be able to produce a more up-to-date will. Whether the claim is backed by evidence or not, it must be investigated before the probate process can continue.
• Testator was not of sound mind: The person contesting the will may claim that the testator was not of sound mind when he or she wrote the will and that it is, therefore, invalid. Again, this is something that would have to be looked in to before the probate could continue.
• Will written under influence from another: The person that contests the will may claim that the will was written under pressure and influence from another party and is therefore invalid.
• Will was not properly witnessed: The contester may claim that the will was not legally or properly witnessed and that the witness signatures are fraudulent, therefore invalidating the will. The courts will have to look in to this and may have to try and locate the witnesses, which could delay the proceedings even further.

These are some of the more common and accepted reasons for contesting the will. Remember, it does not matter if the contester thinks the will is unfair to him or her; unlike issues of validity similar to those discussed above, fairness does not constitute legal basis for challenging a will.

If the court finds that the will is not valid, they could “throw out” all or part or the entire will of the decedent and distribute the property as if the person died without a will. The court could also decide to use a previous will depending on the circumstances that surrounded the creation of the new will.

Needless to say, if there is even the possibility of a will contest, an experienced probate lawyer is a must. Our Denver Elder Law firm has handled hundreds of these types of cases, and we offer a FREE consultation to address your questions about your specific situation. Contact our estate planning attorneys today to make an appointment.

In addition to our main office in Denver, we also offer satellite locations in Arvada, Aurora, Lakewood, Highlands Ranch, Thornton, Golden, Stapleton, and Littleton