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Estate Litigation is Our Strong Suit
Will contest lawyers help clients involved with disputes over the validity of wills. The lawyers at Caldwell Wenzel & Asthana, PC have experience representing clients in challenging the validity of wills as well as clients defending the validity of wills.
A will is a written document expressing the wishes of the decedent (the testator, the person creating the will) regarding the distribution of his or her assets after death. A will may also propose a guardian to care for the decedent’s minor children or incompetent heirs. In Alabama, anyone over 18 and of sound mind may make a will. Additionally, the will must be in writing, signed by the testator, in the presence of two witnesses, and signed by the witnesses.
If there is no will, or if a will is deemed invalid (it has no legal effect), assets would be distributed to the next of kin in accordance with Alabama law. A determination of who is entitled to receive property under Alabama law depends on various factors such as whether the decedent was married at the time of death; whether he or she had children from that marriage; or whether the decedent had children from a prior marriage and/or relationship. The statute provides an order for which next of kin inherit property based on the decedent’s living relatives at the time of death. For a more detailed explanation see our flow-chart for intestate succession in Alabama.
Only “interested persons” can legitimately file a petition to contest a will. Interested persons include people listed as beneficiaries in the will or people who would receive at least part of the estate if the will were declared invalid. A person related to the testator, but not closely enough to obtain part of the estate, would not generally have the ability under the law to challenge a will, and financially it would not ordinarily make sense to do so. Disputes over the validity of a will are extremely complex, and you should consult with a will contest attorney before trying this on your own.
Alabama law on when and where a will contest should be filed is very technical and is strictly enforced by our Appellate Courts. The interested person must file the complaint in the probate court where the will was offered. Any party to the contest started in the probate court may demand at the time of the initial pleading that the case be transferred to the circuit court. Upon receipt of such demand, the probate judge must transfer the contest to the circuit court in the county where the contest is made. Likewise, any interested person may contest the validity of a will after its admission to probate by filing a complaint in the circuit court in the county where the will was probated within six months.
To contest a will, there must be evidence of one or more of the following:
No-contest clauses state that if a person challenges a will, he or she will be completely disinherited and barred from obtaining assets in the estate. Whether such a clause is valid is fact dependent. Generally these clauses are not valid when the contest is made in good faith, but may be enforced if the challenge is frivolously made by a bitter relative who is disappointed that he or she did not receive all they hoped for in the will.
If you are considering a legal challenge to a will or if you are defending the validity of a will, please call our will contest attorneys for a free consultation at (251) 444-7000 or toll free at (855) 390-5566. We proudly work with people throughout Foley, Fairhope, Daphne, Spanish Fort, Mobile and all of Alabama.