By preparing an estate plan, many people can avoid disputes over their property when they die.   

However, sometimes disputes can arise among surviving family members, even with careful estate planning.   

“There are all kinds of motives for why people do these things,” says Missouri estate litigation lawyer Robert Will. “Sometimes people are rightly indignant” over problems with a will, or with how they have been treated or how others may have behaved toward the testator during their lifetime.   

Often, “people are motivated because a sibling got preferential treatment, and they feel like they should have gotten more,” says Will. “Sometimes there are very good reasons for that preference. Ultimately, an emotion rather than fact based justification for challenging a will or trust is necessary.  Strong emotions and questionably supported beliefs as to what happened, without more, are particularly unhelpful if you’re the lawyer representing that person.”  

When it comes to disputes over wills, there are a couple of basic perspectives:  

• The person who creates the will (called a testator) wants to avoid conflicts over their property when they die  
• Beneficiaries or other interested parties who may want to dispute the will for some reason  

If you’re creating a will, you “can avoid a lot of problems on the back end if you have someone who’s a capable estate planning attorney,” says Will. In other words, estate planning helps avoid estate litigation.  

If you’re contesting a will, it’s also important to have an experienced estate litigation lawyer who understands your jurisdiction’s estate laws and the legal issues involved in the probate process.  

This article will explain some of the main reasons for estate litigation and practical issues to consider if you’re considering contesting a will or trust.  

Common Estate Litigation Issues  

Estate assets include a person’s real estate, tangible personal property, financial assets, and other intangible personal property. In addition to the money and property, estates often include family heirlooms and items with sentimental value to loved ones.   

If a family member or other loved one feels left out or cheated in the will or trust, they can try to contest the document in court.  

Some of the main grounds on which people will challenge an estate plan include:  

• Defects in how the estate planning documents were drafted. If there are legal deficiencies in a will or trust document, you can challenge the document’s validity in probate court.  
• Lack of testamentary capacity. If you can prove the person lacked the mental capacity to create a will or trust, you can challenge the validity of the document in probate court. Adults are presumed to have the capacity to make a will, and proving proving otherwise is often challenging, but can be done.  
• Undue influence. If you can show the testator was coerced or misled into creating a will or adding certain provisions to a will, you can challenge the will’s validity in probate court.  
• Breach of fiduciary duty. This isn’t technically challenging the provisions of the estate plan, but how a representative failed to carry out their responsibilities.  Fiduciary duty refers to a person’s responsibility when representing the personal interests of someone else. In the context of estate planning, there are several individuals with a fiduciary duty:  
  • Personal representative (also called an executor) appointed in a will to oversee the decedent’s estate administration in probate court, including asset distribution to named beneficiaries  
  • Healthcare power of attorney who is authorized to make decisions about medical and end-of-life issues on behalf of the individual if they become incapacitated  
  • Financial power of attorney who is authorized to make financial decisions on behalf of the individual if they cannot  
  • Trustee who oversees trust administration, including trust assets and transfer of assets to trust beneficiaries  

Suppose an individual breaches their fiduciary duty by failing to follow the terms of a will or trust document or by failing to act in the best interests of the person who appointed them. In that case, an interested party can sue them in court.  

Who Can Challenge a Will?  

In order to bring a will or trust dispute, you must have what’s called legal standing. You can think of legal standing as a way of weeding out people who don’t have a legitimate interest in suing. The legal issue must affect them.  

To have legal standing in an estate dispute, you must be an interested party. Interested parties are simply individuals who have been named as a beneficiary in a will or trust–in other words, people who stand to benefit from the will.  

Interested parties also include people who would stand to benefit from an estate if a current will was thrown out so an older will or intestacy laws applied. Creditors, or people to whom the person owed money, also count as interested parties.  

So, if you were named in a will, or you think you were left something more under a different will, you are likely an interested party and have legal standing.  

Practical Considerations in Challenging a Will  

Will says that if you plan to contest a will or trust, “you always need to have a game plan–if you win, what happens?”   

“For example, is there an older will or trust that would then be operative? Would that older will or trust get you where you want to be in terms of inheritance? Or would the state’s intestate laws apply if there’s nothing else out there, which may not necessarily lead to better results,” says Will.   

“Sometimes, there are multiple layers, and you have to go back two or three trust amendments or will codicils to get where you want.” If this is the case, you must consider whether “you can make the case for undue influence or lack of capacity for each of the changes getting in the way of the one that you want to have enforced.”  

Because of the complexity of will contests, “it can be a pretty daunting and expensive task. It’s very fact-specific, and there are high emotions involved.”   

“So, I often tell people that if there isn’t a lot of money involved, or if creditors are going to get a good chunk of the estate, then it’s probably not worth contesting, even if people say they don’t care or just want to prove a point,” says Will.  

This is not to discount the importance of setting the record straight or stopping someone from trying to profit from what you believe were not the true wishes of the testator or trust grantor. However, it is crucial to weigh the factors before taking legal action, realizing that contesting a will or trust can be expensive and time-consuming, and often very dissatisfying, including, in many cases, even when the challenge is successful 

It’s best to consult with a lawyer about these issues and to do so as soon as possible. In fact, the timeframe for challenging a will is very short in most states–often a matter of several months at most. So, it’s imperative to act quickly.  

Questions for an Estate Litigation Attorney  

Most estate planning lawyers provide free initial consultations for potential clients, letting you get legal advice about your estate without initial costs.  

To get the most out of a consultation, ask informed questions such as:  

• What are your attorney’s fees and billing options?  
• Do I have legal standing to challenge a will or living trust?  
• Does it make sense practically for me to contest a will?  
• How long and expensive will it be to contest a will?  
• Does the will have a no-contest clause?  

Once you have met with a lawyer and gotten your questions answered, you can begin an attorney-client relationship.  

Look for a lawyer specializing in estate & trust litigation in the Super Lawyers directory.