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. Usually it is a combination of both when someone files a will contest. 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 important facts before you start what can be a long battle:
- Litigation is expensive. The cost of litigation seems to have dramatically risen over the last decade. These types of cases often include expert witnesses and doctors who can charge high hourly rates to provide opinions. As a result, 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. However, many probate attorneys won’t take a will contest on a contingency fee, because there is such a high risk they won’t get paid. As a result, you may not be able to pursue your case without investing a lot of money.
- Have lots of Rolaids on hand. You’re gonna need them. It’s a rough journey, one that can be full of false accusations and decades old resentment. There may also be a counter lawsuit against you. You may be deposed in a deposition, where the opposing lawyer will ask you questions about the case, your family relationships and your motives. You may be portrayed as greedy, and you might have to testify in court.
- 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. On the other hand, your counsel may think it best to send a letter to the attorney representing the person you’re considering suing with a request for information. Depending on the response, you may decide to file suit anyway. In most cases, you’ll have a limited time to contest the will. If you don’t do so within that time period, you will be barred from bringing an action to do so. Talk to an experienced attorney shortly after the death to avoid this pitfall.
- You will be asked to settle. 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. The biggest hurdle sometimes to settlement is a party who refuses to set aside their emotion or wants to be vindicated.
- Expect emotional pain. While you may get some satisfaction if you win, you 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 but consider before you file what the impact will be on those involved.
- In Terrorem Clause. This is a Latin phrase for “in fear”, a provision that threatens anyone who challenges the legality of the will or any part of it and loses, may be treated as predeceased or cut out of the will. In states that enforce this type of provision, this may be the most important factor to consider.
Reference: Forbes (May 21, 2018) “5 Things You Should Know About Contesting A Will”
