A Will must be specific––ambiguity creates space for challenges. Likewise, a Will must be executed properly, or else it again creates a situation where it can be challenged in probate court. Further, if there is more than one Will because prior Wills were not properly revoked, there again is a situation where a Will can be challenged after the death of the testator.
Challenges to a Will take up a lot of resources, particularly time and money. Sometimes a challenge is not genuine while other times, the challenge to a Will's validity, meaning, or purpose, is viable and worthy. At Heritage Law Office, our estate planning attorney in Wisconsin will help you understand if you can successfully challenge a Will, and if so, how to do it. If you are the testatory, our Wills attorney will make sure you understand how a Will can be properly drafted to avoid contests. Contact us at 414-253-8500 or fill out our online form to schedule a free consultation. In the meantime, here's an overview of challenges to a Will in Wisconsin.
What is a Will Contest?
When a person dies, their Will is offered for probate. The Will proponent––the person asserting the Will's validity––has the burden to prove the Will was duly executed. When a person challenges the validity of the Will, the burden shifts to the person challenging it, who is known as the contestant or caveator. The remedy for the challenge is what's known as a Will contest.
Who Can Challenge a Will in Wisconsin?
Not everyone can challenge a Will, and the precise groups of people who can depends on the state. However, most states recognize the following “interested parties” as people who can challenge a Will in probate court because, given the circumstances, they have legal standing to contest the Will.
Interested parties include:
- Beneficiaries of the will, or people who actually received property in it
- Beneficiaries of a prior will, but who have received nothing in the current one
- Anyone who would have inherited through intestacy law, but who received nothing in the will
- Creditors with a claim against the estate
To note, beneficiaries do not have to be family members but could be friends or organizations.
Grounds for Contesting a Will in Wisconsin
An interested party who wants to challenge a Will must have a valid legal reason to do so. The grounds for challenging a Will can include:
- The Will does not comply with the state's legal requirements by, for example, not having enough witnesses or having a witness that was also a beneficiary
- Ambiguous provisions exist
- The Will was revoked
- A new Will exists
- Undue influence, fraud, or duress altered the testator's decisions in the Will
- The testator lacked the necessary mental capacity to write a will
- Claims the testator suffered from insane delusion, which occurs when the testator believes something that does not exist except in the testator's mind, and the delusion affected the testator's disposition of property
When an interested party contests a Will, that party has the burden to prove the allegations.
How to Challenge a Will in Wisconsin
An attorney can help you challenge a will by filing a lawsuit in the probate court that has jurisdiction in the place where the testator died. These challenges have to be made quickly: The state's statute of limitations usually begins to run when the testator dies, and once it expires the will cannot be challenged.
However, many wills are written with no-contest clauses, also known as no-contest “in terrorem”. While these do not completely prevent challenges from being made, they do strip a beneficiary of what they received in the will if they mount a challenge and then lose their claim in court. Testators make frequent use of these clauses when they want to deter challenges.
Contact a Wills Lawyer in Wisconsin Today
If you believe a Will that has been offered to probate is invalid for any of the above reasons, the Will can be challenged. A successful challenge depends on how well you put together your arguments and evidentiary support. Our probate lawyer in Wisconsin will thoroughly review your situation, the Will, and other documentation, advise you on your options, and, if it's in your best interests, put together a strong case. Contact Heritage Law Office today either online or at 414-253-8500 to schedule a free consultation.
Frequently Asked Questions (FAQs)
1. Who can challenge a Will in Wisconsin?
As per most states, Wisconsin also recognizes the term “interested parties” as those who can challenge a Will in probate court due to the given circumstances where they have the legal standing to contest the Will. Interested parties may include beneficiaries who do not necessarily have to be family members but can be friends or organizations.
2. What are the valid grounds for challenging a Will in Wisconsin?
A Will can be challenged in Wisconsin on various grounds which include: the belief that the testator didn't have the mental capacity when the Will was signed; the suspicion that the Will was signed under undue influence or duress; the belief that the Will was forged or fraudulent; or the belief that the Will isn't the most recent version.
3. How can an attorney help in challenging a Will?
An attorney can help you challenge a Will by filing a lawsuit in the probate court that has jurisdiction in the place where the testator died. These challenges must be made promptly as the state's statute of limitations usually begins to run when the testator dies. Once the statute of limitations expires, the Will can no longer be challenged.
4. What is a no-contest clause in a Will?
Many Wills contain a "no-contest" clause, also known as "in terrorem". These clauses don't completely prevent challenges but can strip a beneficiary of what they received in the Will if they mount a challenge and then lose their claim in court. No-contest clauses are frequently used by testators to deter potential challenges to the Will.
5. What is the process to successfully challenge a Will in Wisconsin?
To successfully challenge a Will, the interested party contesting the Will must have valid legal reasons to do so. The party has the burden to prove the allegations. A successful challenge depends on how well you put together your arguments and evidentiary support. You should consult an experienced probate lawyer who can thoroughly review your situation, the Will, and other documentation, advise you on your options, and put together a strong case if it's in your best interests.
