8 Tips That Can Help You Challenge Testamentary Documents Like an Pro

Contesting a will or trust means challenging the terms of the testamentary documents admitted into probate, usually with a lawyer’s assistance.

Probate litigation is often a long and expensive process, but if someone has stolen your inheritance after a loved one passes away, a will or trust challenge may be your best chance to recover what you lost.

In this blog post, we’ll offer you some insights on how probate litigation works in 2020 and tell what you need to know before stepping into court.

1. Understand proper testamentary document drafting and execution requirements.

Loved ones draft their will or trust to explain how they want their land and personal property distributed among heirs after they pass away. Such testamentary documents particularly include detailed information that declares:

  • Which real estate and personal assets are available;
  • When the distribution will take place; and
  • Which heirs or beneficiaries will inherit from the estate.

In Iowa, testamentary documents must further hold certain criterion before the courts can legally enforce them:

Proper Drafting—testamentary documents must be in writing.

Proper Execution—decedents must have signed their will or trust.

Witnesses—two competent adults must have witnessed the execution.

Testamentary Capacity—the deceased must have held the requisite legal mental capacity to execute his/her testamentary documents.

Estate planning attorneys usually draft the will or trust presented in probate. Some folks however create and execute their testamentary documents on their own without the advice or support of a lawyer which raises the risk of the estate facing expensive dispute litigation during probate.

In either case, will or trust disputes arise when individuals with standing challenge the provisions found in testamentary documents or when interested parties contest the decedent’s entire estate plan.

2. Know what must happen before you can file a will or trust dispute.

Executors, trustees, or interested parties safeguarding a deceased loved one’s testamentary documents may petition a probate court to accept the decedent’s estate plan for asset distribution in accordance with its terms.

Probate judges thereafter will either accept the testamentary documents before them and assign an estate fiduciary to manage proceedings or reject the will or trust and declare the estate intestate.

Once appointed, executor and trustee fiduciaries must try to locate named or unnamed heirs and beneficiaries and notify them that the probate court has accepted the decedent’s will or trust.

The fiduciary must also advise interested parties on how they can dispute the estate planning instrument under court consideration if they hold evidence to support an inheritance claim.

3. Recognize the individuals who may bring probate litigation.

People expressly named in a will or trust are beneficiaries and therefore hold “standing” to challenge such testamentary documents in probate.

Unnamed individuals who may lose a rightful inheritance under the provisions found in a will or trust are likewise “interested parties” that may hold standing to contest the legal instrument that disinherits them.

Plaintiffs therefore must first consult with an experienced probate litigator to find out if they hold standing to sue the estate before moving forward with expensive dispute litigation.

4. Identify the legal grounds for contesting testamentary documents.

Grounds are simply permissible legal arguments that explain why the courts should set aside the decedent’s estate planning documents or discharge the controversial provision(s) found in them.

In Iowa, challengers hold grounds to dispute a will or trust if they have evidence proving:

Improper Execution. The testamentary documents bear no valid signature or were not signed in front of two witnesses per Iowa probate law.

Undue Influence. A person in a confidential relationship with a vulnerable estate planner applied his/her apparent authority to actively seek an improper inheritance from the estate.

Incapacity. The decedent was not sound of mind when executing or modifying his/her will or trust.

Fraud. A fraudster willfully induced or misled the deceased into executing his/her estate plan of which caused an economic harm to another beneficiary.

Duress. The decedent drafted or modified his/her will or trust under the threat of harm.

5. Understand the risks of “No Contest” provisions

Some testamentary documents contain “no-contest” clauses of which automatically eliminate a challenger’s inheritance when he/she loses his/her estate dispute in court.

Juries may also order such plaintiffs to pay the estate restitution or indemnify the legal fees paid to defend the challenger’s so-called frivolous lawsuit.

Probate courts in Iowa however will not enforce no-contest provisions against plaintiffs who sue the estate in good faith and for probable cause.

This means that as long as one possesses a reasonable belief he/she holds legal grounds to contest the testamentary documents in probate, the courts will not forfeit his/her interests in the estate if he/she loses the case.

6. Grasp probate litigation civil procedure.

When challenging testamentary documents in Iowa, interested parties must sue in the appropriate district court after receiving notification that the estate has entered probate, making sure they file before the deadline mentioned in their probate notice.

The case thereafter enters discovery where both sides gather evidence and testimony to support their grounds for bringing the action or to affirm their will and trust dispute defenses.

If during discovery the parties cannot resolve the dispute informally, the case moves to court.

7. Discover how parties resolve testamentary document challenges?

Over ninety percent of probate litigants in Iowa settle their will or trust disputes in mediation or during alternative dispute resolution proceedings. If however neither side can reach an agreement, the challenge heads to court where a jury decides whether to set the document (or the provisions in controversy) aside or to let the will or trust stand.

Depending on the size of the estate or the complexities surrounding the dispute, heirs and beneficiaries should expect to wait months or even years to inherit from an estate in probate litigation.

Remember that time always comes at a cost when resolving estate disputes—legal fees, expenses to maintain the estate property in controversy, appreciation or depreciation of assets held in court—many challengers therefore would have much to gain by retaining a skilled and knowledgeable probate dispute attorney to negotiate a fair settlement among all parties early in discovery.

8. Find out how to avoid costly will and trust dispute litigation.

Most estates can avoid probate disputes by making sure family members properly execute their testamentary documents before death. This means no handwritten estate plans or executing cheap “do-it-yourself” online forms. Heirs and beneficiaries may further avoid improper execution lawsuits by ensuring two competent witnesses are present when a loved one signs his/her will or trust.

It’s also important to always attach amendments to an existing will or trust when modifying provisions as opposed to drafting two separate, conflicting testamentary documents—the focus here is to reveal the estate planner’s true intent should the modification’s validity ever come into question.

Family members should likewise periodically monitor the activities of individuals in confidential relationships with vulnerable relatives or demand estate accountings from fiduciaries that hold power of attorney over their loved ones. Doing so may catch undue influence or fraud behavior before it happens, saving the estate from facing expensive litigation during probate proceedings.

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