12 Important Questions You Should Ask Yourself Before Entering Will Dispute Litigation

Estate dispute litigation is a delicate issue that unquestionably affects friends and relatives—and because of this, many folks refrain from challenging a will or trust in probate after a loved one passes away.

Yet, when testamentary documents disinherit you or reduce your expected inheritance to practically nothing, bringing will contest action may be the only option you have to recover what another person has wrongfully taken from you.

In this post, we’ll go over some noteworthy questions to consider before disputing a will to help you discover if your next step should be to contact an Iowa probate litigator for further consultation.

1. Do I hold standing to dispute the testamentary document?

This arguably is one of the most asked questions among will challengers and an important element for probate litigators to determine, since the courts will dismiss an interested person’s will contest in summary judgment if he/she does not hold standing.

Iowa Probate Code reads interested parties may contest a will or trust upon receipt of a probate notice or after discovering the proceedings from a notice published in their local newspaper.

The Iowa Supreme Court has reaffirmed the Code many times, ruling interested parties “must have capacity to sue in order to commence and maintain an action,” and the test for standing is “the complaining party [must] have a specific, personal, and legal interest in the litigation, and be injuriously affected.” [Huffey v. Lea (Iowa 1992)]

Estate law precedent likewise holds any individual named in the decedent’s current or former will, testate and intestate heirs and third-party beneficiaries who have a legitimate interest in the testamentary document can hold standing.

An “interested party” shortlist would therefore include creditors, fiduciaries/executors/trustees, intended/unintended beneficiaries, and the decedent’s spouse (or ex), children, and relatives.

2. Does my claim hold grounds?

If you have standing to bring a will dispute, you must also ask yourself if you hold evidence that shows:

  1. Improper Execution—did the deceased execute the document properly (with a signature and witnesses)?
  2. Testamentary Capacity—did the testator possess a sound mind when executing or modifying the will or trust?
  3. Undue Influence—did the testator’s confidante or another person influence the decedent into drafting or changing the testamentary document?
  4. Fiduciary Litigation—did trustee/executor/fiduciary negligence harm your expected inheritance?
  5. Fraud Litigation—did another person deceive the testator into disinheriting you?
  6. Is the will inequitable?

Just because you’re unhappy with what the will provided you does not necessarily mean the document’s asset distribution was inequitable. Only a seasoned probate litigator can advise you on whether estate planning documents in probate have disinherited you properly.

Unnamed third-party beneficiaries on the other hand may hold strong claims when they can prove someone’s intentional act or negligence injured their expected inheritance.

3. Does Iowa Civil Procedure bar me from disputing the will?

You can only challenge a will after the testator’s death and not before (more on this below).

Iowa’s statute of limitations also bars you from bringing an estate dispute claim if 120 days have passed after the estate executor published a second notice of probate in the local newspaper or 30 days after you received an official notice of probate in the mail.

It’s therefore almost impossible to challenge a will when you do not act promptly.

4. Can I contest a will while the testator is alive?

As mentioned above, you can only challenge testamentary documents on grounds of capacity, fraud, undue influence, etc… after they entered probate. However, you may bring fiduciary removal proceedings or ask the courts to assign a conservator if the testator is alive and incompetent to care for himself/herself or if he/she is vulnerable to the influence, fraud or deceit of another.

5. Can I challenge the will by myself?

Estate dispute litigation is not like “pro se” small claims court where you act on behalf of yourself.

Will challenges involve filing caveat objections and a petition to set the document aside; serving interested parties written notice of the dispute; meeting discovery deadlines and dates set by the probate court; pleading and answering pre-trial motions; participating in mandatory dispute resolution and mediation; and going to trial (if necessary).

In this regard, you will need to retain an experienced probate litigator to help you obtain a favorable will contest verdict.

6. Can I contest testamentary documents that unduly left everything to the surviving spouse and disinherited the children from a previous marriage?

Iowa courts assume a surviving spouse’s inheritance is legitimate unless an interested party can prove undue influence took place or that a valid premarital agreement prevents him/her from taking estate assets. Remember also that Iowa statutes allow surviving spouses to take an elective share of the deceased’s estate even when the will’s provisions leave him/her nothing.

7. Am I willing to make a compromise or mitigate my injuries?

Estate dispute litigation is a lengthy and complex process that can take up to one to three years to resolve, depending on the size of the estate. Knowing this brings the question of whether you’re open to settlement and mediation negotiations for a quick result, or whether you’re prepared to place your family and friends’ inheritances on hold while waiting to go to court.

8. Can the will disinherit me if I challenge it?

The Iowa Supreme Court In re Cocklin’s Estate (Iowa 1945) enforced, adapted and incorporated §2-517 of the Uniform Probate Code into precedent law when holding no-contest clauses are enforceable, “unless the one who contests the will does so in good faith and for probable cause.”

The Court also has steadily upheld these “good faith and probable cause” elements, most recently In The Matter of Estate of Workman (Iowa 2018), thus making it extremely difficult (but not impossible) for interested parties to defeat a testator’s intent of writing a challenger out of the will for bringing an action against it.

If you’re considering challenging a no-contest clause found in testamentary documents, know that you will forfeit any right or interest you have in the estate and possibly be liable to pay the defendant’s attorney fees and expenses if your evidence is not legally sufficient to justify your claim or if the fact finder deems you challenged the will in bad faith (i.e. to get back at a sibling rival).

9. Can I contest a gift the testator made to another person or to charity?

If evidence reveals the testator was of sound mind when he intentionally gave your share of the estate to another while he/she was alive, the courts will dismiss your lawsuit, as long as the inter vivos gift recipient was not guilty of undue influence.

10. Can I afford will challenge litigation?

While estate and trust dispute attorneys agree to put forth their best efforts to secure a favorable outcome, they never guarantee that your challenge will be successful. Estate dispute litigation is also costly because of the man-hours your attorney will spend working out your controversy.

The challenger accordingly pays legal fees and expenses as probate litigation moves forward. That said, some attorneys will accept the job on a contingency fee basis, meaning you pay nothing in fees if you lose the lawsuit.

It’s important in either case to reduce the risk of losing by finding an estate and trust attorney that specializes in will challenge litigation and possesses an excellent past performance in securing favorable verdicts from Iowa probate courts.

11. Can the estate pay for my probate litigation legal fees and expenses?

In some situations, the court can order the estate to pay reasonable attorney’s fees and expenses to resolve a will challenge, but this generally applies to beneficiaries named in a will who bring legal action in good faith. Unnamed third-party beneficiaries on the other hand pay their own attorney’s fees but may request restitution if they win their lawsuit—assuming that sufficient probate assets exist to pay the fees.

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