A will provides the opportunity for a deceased person to have a say in what will happen to assets he worked to acquire. If the will is not considered valid, the deceased will lose his voice. Obviously, it will be too late at that time to create a new will or make other provisions for the transfer of assets. This undesirable outcome can thwart the wishes of a person to decide who inherits and what should be done with money and property after death.
It is important to ensure the wishes of the deceased are respected whenever a will is actually legally valid. If a will is challenged, an attorney can help to defend the will and argue it should be enforced. Unsworth LaPlante, PLLC has represented clients both in challenging a will and in arguing that a will is valid, so we understand this type of case from both sides of the table. We work hard to help protect the interests of our clients when a will has been challenged, and we will put our extensive legal knowledge of this type of case to work for you. Give us a call to find out more.
How a Probate Attorney Can Help Defend a Will
After a death, the probate process is used to determine whether a will is valid and enforceable, and to take other steps necessary to facilitate the transfer of assets from the deceased to heirs. The person named as executor in the will is going to initiate the probate process by filing appropriate court paperwork in the location where the deceased owned property. Vermont Judiciary has a list of probate courts in different counties where wills are probated. If the deceased owned property in multiple states or locations, it is possible probate will need to occur in different jurisdictions.
Once the probate process is underway, there is an opportunity for a challenge to the validity of the will. Heirs, close family members, or other interested parties can try to make a claim and argue that there was a problem with the will or its creation and that the will should thus not be enforced. Many different kinds of arguments could be made to try to challenge the validity of the will. For example, a claim could be made that the will is invalid due to:
- Undue influence. Someone may have convinced the deceased to create a will, with the deceased submitting to the pressure rather than writing a will that reflects his true desires. When a will is changed to leave everything to a caretaker, for example, or to a new romantic partner the deceased knew only for a brief time, this may be an example of a situation where accusations are made that the caretaker or romantic partner exerted undue influence.
- Unsound mind. If the deceased wasn’t of sound mind at the time the will was created, the will is not going to be legally valid.
- Fraud. If the deceased was induced to make the will due to material omissions or false material facts, then the will may not be valid because it was made based on fraudulent claims.
- Coercion. When someone is forced into making a will, it is not legally valid.
- Failure to follow legal protocols. If the will doesn’t conform with Vermont’s requirements for a valid will, an argument can be made that it should not be enforced.
The executor of the estate will typically defend the validity of the will, and can hire a probate attorney to help. A probate attorney can conduct a careful review of the circumstances surrounding the creation of the will and of the allegations being made that the will is invalid.
A probate attorney can try to undermine the arguments being made by those individuals claiming the will should not be enforced. An attorney can also present affirmative evidence showing why the will was voluntarily created, without fraud or duress, by someone who was of sound mind.
The appropriate ways to defend a will are going to vary depending upon the situation and accusations made. Unsworth LaPlante, PLLC can put our considerable legal experience to work to help determine the best way to defend a will.
Getting Help from a Rutland Probate Attorney
To learn more, join us for a free seminar or contact us to get personalized advice that is tailored to your situation. You can give us a call at (802) 879-7133 or contact us online today so we can get started on protecting the rights of the deceased.
Latest posts by Stephen Unsworth (see all)
- Estate Planning for Family Owned Businesses and Farms - March 18, 2019
- What Are the Responsibilities of the Probate Court? - March 6, 2019
- Special Needs Planning and Estate Recovery - January 30, 2019