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WILL CONTESTS

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.

After the testator dies, the will is filed with the probate court. If there are no objections, then the court will admit the will and appoint an executor to manage the estate (pay bills and debts, notify affected family members and distribute assets).

Who can dispute a will?

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.

When and where can a legal challenge be filed?

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. 

What are grounds to have the will ruled invalid?

To contest a will, there must be evidence of one or more of the following:

  • Mental incapacity: The testator must have testamentary capacity: he or she knew generally what property he or she held, what he or she wanted to do with this property, knew those to whom he or she wished to devise the property and generally understood the results of his or her choices. It is presumed that the testator had testamentary capacity, and declining mental ability or memory loss does not necessarily mean legal capacity is lacking.
  • Undue influence: The party can claim that the will’s contents are the result of undue influence over the testator — that a caretaker, significant other, or other trusted person close to the testator sufficiently manipulated his or her intentions and, as a result, the will benefits the influencer to the detriment of the challenger. The testator may have been vulnerable to manipulation because of deteriorating physical and/or mental health, and the will may be the result of threats by the manipulator.  To learn more about undue influence and what our will contest attorneys can do for you, please read our section on undue influence.
  • Technical, legal requirements weren’t met: There are several procedural requirements in order for a will to be valid under Alabama law. In most cases, a will is typed and witnessed by at least two people who do not have an interest in the will. It need not be notarized or use legal jargon, but these can be favorable factors when a judge rules on the validity of the will. Generally, holographic wills are not valid in Alabama. Moreover, do-it-yourself, fill-in-the-blank, and online will forms not customized for Alabama law may not be legally sufficient and can create the basis for a will challenge.
  • Any other valid objection to the will:  Alabama law leaves the door open for any other valid objections to the will.  Cases thus far have considered objections such as will executed by mistake, will was procured by fraud, will was previously revoked by the testator. Our team of will contest and estate dispute lawyers have successfully argued that when a couple signs reciprocal wills or enters into a contract to not change their estate plan after the death of one spouse, and upon the death of one spouse, the surviving spouse does in fact change his or her estate plan to the detriment of decedent spouse’s heirs, that a valid objection to the validity of the new estate plan is the surviving spouse’s breach of contract.

What are ‘no-contest clauses,’ and are they valid?

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.

How can you contact will contest lawyers you can trust?

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.

GETTING HELP

Our estate planning and litigation attorneys are some of the most active litigation practitioners in Alabama. Our lawyers have had enormous success in both probate and circuit courts. To schedule a free consultation with our experienced Alabama estate planning attorneys, please contact us.

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