Our will contest attorneys will help you preserve your loved one’s wishes
A will contest provides an avenue to ensure your loved one’s wishes are upheld in the event that their drafted will does not appear to reflect their true intentions for leaving behind their remaining assets. If a loved one’s will appears to be the result of fraud, forgery or undue influence, you may have a case for a will contest.
If you are a beneficiary and believe that there are discrepancies with a loved one’s will, you should consult a skilled will contest attorney as soon as possible to secure access to your rightful inheritance. Our experienced contested wills and probate lawyers at JacksonWhite Law provide support for clients throughout Arizona seeking to initiate a will contest.
What is a Will Contest?
A will contest is an option for challenging the validity of a will and its provisions in the probate court. A last will and testament is a vital piece of estate planning, as the document lays out an individual’s last wishes by specifying their desired distribution of assets to identified beneficiaries. For instance, a father may create a will that specifies that his daughter should receive his family home and his son receive his personal vehicles.
For such a will to be valid and enforceable, though, Title 14 of Arizona law sets forth specific guidelines that all wills must follow. ARS 14-2502 requires a will to be in writing to be valid, and A.R.S. 14-2501 requires the testator to be at least 18 years old for the will to be valid. If the will does not follow all of the guidelines, it may be contested and invalidated.
In addition to simple clerical errors, it is also common for more complex issues to arise regarding the validity of a will being used to disperse assets. For example, you may suspect that a family member has coerced the decedent to change their will or fraudulently altered the will. In such a case, a will contest can invalidate all or parts of a will in order to ensure that a grantor’s wishes are upheld by the court.
Grounds for Contesting a Will in Arizona
Nobody can contest a will just because they believe they should receive a larger share of the inheritance. An interested party must have legitimate, legal justification for contesting a will and believing it should be invalidated. The following are the most common reasons a beneficiary may contest a will in probate court and have valid grounds to do so.
Conflicting Wills
Creating a will is important, but updating a will is even more important as further assets are purchased or sold. When a will is updated, the previous version is no longer valid and cannot be used.
Due to this, it is important to ensure that the most current version of a will is being used to guide the estate administration process. If an individual left behind multiple estate planning documents, then a will contest can be used to clarify which one should be followed during estate administration.
Improper Execution of the Will’s Instructions
The purpose of a will is to give specific instructions for transferring assets to beneficiaries. When the executor releases the assets to the beneficiaries, they must follow the specific written instructions.
For example, if a will states that a beneficiary must receive their inheritance on their 18th birthday, the executor must release the assets to the beneficiary on their 18th birthday. Suppose the executor acts improperly and decides to hold off until the beneficiary is older. In that case, the beneficiary has the right to contest the will and force the executor to transfer the assets to them.
Lack of Testamentary Capacity
During the estate planning process, the grantor of a will must be of sound mind and judgment as they draft and sign their will. If the grantor was in declining health, incapacitated, or recently in a severe accident, they may not have been of legally sound mind to make decisions and understand the implications of their actions.
If medical records or witness testimony can build a case that the grantor of a will was not of sound mind during the creation and signing of their will, it can be deemed invalid. A will contest can be used to invalidate any parts of a will that were created by a grantor who was not of sound mind at the time.
Fraud or Forgery
Because the estate planning process often involves determining the outcome of valuable assets, there may be bad actors seeking to increase their access to a greater share of assets by any means necessary. As a result, the estate planning process is subject to a high risk of fraud.
For example, individuals may attempt to take an asset for themselves by using fraudulent methods like falsifying a document, forging the grantor’s signature on an amendment to the will, creating a fake identity to add to the will, or even coercing the grantor of a will to change their will. If any interested party suspects fraud in a will through either clear or circumstantial evidence, they may contest the document in court.
Undue Influence
Undue influence occurs when an individual takes advantage of a will’s creator for the sake of their own personal gain. Acts of undue influence might include threatening to revoke care from an individual, blackmailing them, or guilting a grantor in order to influence them to include an individual in a will or provide a greater share of an inheritance.
Technical Errors
In Arizona, a will must meet specific criteria in order to be legally recognized under the law. To be considered valid, a will must be signed in front of multiple witnesses by a grantor who is of sound mind. If any of these criteria are not met, then an interested party may be able to use a will contest in order to have a will invalidated by the court.
Who Can Contest a Will in Arizona?
Not just anyone can contest a will in Arizona—under ARS 14-201, the law specifies that only interested parties in the estate have grounds to contest a will. Interested parties with the right to contest a will may include beneficiaries named in the will, legal heirs with a claim to a portion of the estate, or creditors with a right to assets of the estate.
Interested parties with standing to contest a will would include the following individuals related to the decedent:
- Trustees or executors
- Heirs
- Devisees
- Children
- Spouses
- Beneficiaries
- Creditors
- Someone with a claim to the decedent’s property
The Will Contesting Process in Arizona
Contesting a will requires following a specific legal process. First of all, you must be an interested party in a will to have the ability to contest it. If you have standing to contest a will and grounds
Contesting a will in Arizona involves the following steps:
- Gathering Evidence – Before contesting a will, you should gather as much evidence as possible to demonstrate fraud or undue influence, including witness testimony, medical records, and additional documentation of the grantor’s wishes.
- Filing the Will Contest – An interested party must file a contest with the court within 90 days of the beginning of the probate process.
- Resolution Options – A will contest may be able to be resolved before trial if the beneficiaries who are most affected by the discrepancies in the will are able to negotiate and come to an agreement regarding the distribution of assets they receive.
- Court Proceedings – If interested parties are unable to come to an agreement, then the contest will need to go to a trial, where each side presents their case and supporting evidence, and a judge will decide whether a will should be considered valid.
The will contest process can be complex and difficult to navigate on your own. If you believe you have grounds to contest a will, you should seek the support of an experienced contested probate attorney as soon as possible to help you build your case and support you in the process.
Common Challenges and Risks of Contesting a Will
A will contest may be a good idea if you have probable cause, and it can help you secure access to a rightful inheritance. However, contesting a will does offer some potential challenges, and there may be a few risks involved if the costs outweigh the potential benefits.
Contesting a will comes with the following challenges and risks:
- No-Contest Clauses – If a will includes a no-contest clause, it can penalize an individual with a forfeiture of their inheritance if the court finds that their claim lacked a probable cause.
- Damaged Family Dynamics – A will contest that alleges fraud or undue influence by a family member can lead to a dynamic of mistrust and conflict that may harm the long-term relationship of the family.
- Legal Fees – The costs of hiring an attorney, filing a will contest, and attending court hearings can be costly if the contest does not result in a successful outcome and a greater share of an inheritance.
Ultimately, it’s important to consider whether a will contest is worth the challenges and risks. During an initial consultation, our will contest attorneys at JacksonWhite can review the facts of your case, assess whether you have probable cause for a will contest, and help you weigh the potential benefits and risks of pursuing one.
How Our Will Contest Attorneys Can Help
Our will contest and probate lawyers at JacksonWhite are prepared to help you pursue a valid will contest and uphold your loved one’s intentions. From assessing whether you have probable cause for a will contest to helping you understand the nuances of Arizona probate law, we’re here to offer advice at every step.
Our probate lawyers at JacksonWhite Law can support you in the following ways:
- In-Depth Experience in Arizona Probate Law –Probate laws involve significant nuance, so our attorneys serve as a valuable resource in understanding probate laws and the necessary legal processes.
- Compassionate Approach – We understand that the probate process can be emotionally difficult on a family, and we remain sensitive to these challenges while taking steps to minimize conflict.
- Personalized Representation – We remain committed to protecting your interests, whether you are creating or defending a will, by offering tailored legal advice to each unique situation.
- Negotiation and Litigation – Our contested probate attorneys will offer support in mediation and negotiation between interested parties in a will to seek a positive outcome outside the courtroom.
- Litigation – If negotiations are unsuccessful, we will represent you in court to present your case and any supporting evidence in search of the best possible outcome.
Above all else, our top priority is helping you secure access to your rightful inheritance and preserve the wishes of your loved one. Schedule a consultation with our team to learn how we can support you in the probate process and help you navigate a potential will contest.
Will Contest Frequently Asked Questions
What is the time limit for contesting a will in Arizona?
According to ARS 14-3108, an interested party can contest a will within twelve months of the initiation of informal probate or two years of the decedent’s death. If the formal probate process has begun and the will has been submitted to probate, an individual has between 30-90 days to initiate a will contest.
Can a will be contested if it was created out of state?
A will can generally be contested if it was created out of state, depending on where the probate process takes place. The probate process typically occurs in the county where the decedent resided upon their death, so a will contest can then be filed in the same court, even if the will was originally created in another state.
If the decedent owned real estate in another state, then probate will also be necessary in the county where the property is located to determine how to distribute it. If there are disputes surrounding rights to that property, then the contest would also need to occur in that county.
What happens if a will is successfully contested?
If a will contest is successful and the court determines that all or portions of the will were the result of fraud, undue influence, or lack of testamentary capacity, the court will invalidate any affected portions. This may mean invalidating the entire will or just specific provisions, depending on how much of the will was affected.
If the entire will is considered invalid, then the decedent’s assets may have to pass through a process known as intestate succession, where assets are distributed to legal heirs in accordance with state intestacy laws.
How long does the will contest process take?
The duration of a will contest process can vary depending on the case. A will contest with clear evidence of fraud may proceed quicker. However, if there are multiple parties involved and presenting a variety of evidence, it may take longer. Generally, the process can take anywhere from a few months to a year.
Can a no-contest clause prevent a will from being challenged?
Sometimes, the creator of a will may impose a no-contest clause that will, in theory, dissuade others from contesting a will. However, the reality is that a no-contest clause may not always be enforceable in court. Even if a will includes a no-contest clause, a skilled attorney may be able to argue against it if there is enough evidence to support a probable cause for a will contest.
Get Help With Will Contesting in Arizona
If you suspect that a will has been fraudulently altered or influenced in a way that does not reflect your loved one’s true intentions, a will contest can be a valuable step for preserving their wishes. While you are not required to hire an attorney to go through probate, it can be extremely valuable, especially if you believe that the will is invalid and should be contested. Contesting a will is arduous, and doing it on your own will make the process even harder,
If you are looking to contest a will or defend one, contact our team of probate lawyers at JacksonWhite Law. Our attorneys have years of experience in supporting clients throughout the probate process and navigating will contests. Schedule a consultation with one of our Phoenix will contest attorneys so we can learn more about the details of your case and assess whether you may have grounds to contest a will.
Call Probate Attorney Ryan Hodges at (480) 467-4365 to discuss your case today.
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