If it helps, and it might not, this happens more frequently than you’d think. The response is sometimes shock, other times, it’s anger. However, according to this recent article from Forbes, “5 Things You Should Know About Contesting A Will,” before you start making revenge plans or hiring the most tenacious attorney in town, take a deep breath. You need to consider some cold hard facts:
- Litigation is expensive. Many people will ask if an attorney will take the case on a contingency fee basis—typically a third of what you receive, and he or she only gets paid if you do. Most probate attorney won’t take a will contest on a contingency fee, because there’s a risk they won’t get paid. If they do, be certain that you have an experienced estate planning attorney with experience in estate battles.
- Have lots of Rolaids on hand. You’re gonna need them. It’s a rough journey, one that can be full of lies, misrepresentations and accusations. There may also be a counter lawsuit against you. You’ll probably be deposed in a deposition, where the opposing lawyer will ask you questions about the case. You may be portrayed as greedy, and you might have to testify in court.
- Snap decisions are required. Once you hire your attorney, he or she will work with you to develop a strategy for the case. Your attorney may recommend that you file suit immediately and be the first one into the courthouse. On the other hand, your counsel may think it best to send a letter to the attorney representing the person you’re suing with a request for information. Depending the response, you may decide to file suit. In most cases, you’ll have a limited time to contest the will. If you don’t do so within that time period, you can’t bring a lawsuit. Talk to an experienced attorney shortly after the death.
- You’ll probably reach a settlement. Once the litigation has begun, and the attorneys have had time to exchange information and do some fact finding (in what is known as the discovery process), your attorney will talk to you about the strengths and weaknesses of your case. It may be appropriate at that juncture for one side to present the other with a settlement offer. This would end the litigation without the time and expense of trial. This may be a wise option, if you’re tired of fighting and willing to consider a settlement instead of going to trial. Your attorney may also point out weaknesses in your case and advise you to be happy with getting a settlement. That way you can move on with your life. You should approach the settlement like a business decision, and try to keep emotion out of it.
- Expect emotional pain. While you may get some satisfaction if you win, you will may lose any connection with the people you bring to court. If you lose, well, that’s a lose-lose proposition. No matter how big the win, any underlying emotional issues will still be with you. Be prepared to be very businesslike about any estate battle.
Reference: Forbes (May 21, 2018) “5 Things You Should Know About Contesting A Will”
Suggested Key Terms: Estate Planning Lawyer, Will Contest, No-Contest Clause, Capacity, Executor