Examining the process of challenging a will

On Behalf of | Apr 21, 2017 | Probate Litigation |

Challenging a will in Minnesota does not always mean there will be a court battle between heirs, nor does it mean that probate litigation is inevitable. However, these disputes often end up with lots of posturing before a settlement is reached.

An interested party can challenge a will. These include heirs identified in the will or anyone who can inherit property under the law. Spouses generally have inheritance rights based upon the length of their marriage. Children do not have a right to inheritance but are generally protected from accidental disinheritance.

A will cannot be challenged because an heir or other person does not like its terms. A person must prove that it contains a legally-invalid term. However, this is challenging because the will is legally-presumed as being valid, and therefore accurately reflects the intent and wishes of the person who wrote it.

Incompetence by the writer of the will is a ground for challenges. However, the testator had to be incapacitated at the time the will was executed. This usually requires the presentation of medical records or witnesses. This may difficult if the will was drafted many years earlier.

Susceptibility of undue influence is another ground for challenging a will. This occurs when another person with an opportunity and influence, such as a home health care worker, improperly persuaded or pressured the author of the will to make changes. Other related grounds for invalidation when this occurs are revocation, improper execution, fraud or forgery.

Retirement plans, life insurance policies, jointly-owned property and similar assets do not have to go through probate and are more difficult to challenge. The beneficiaries of retirement and pension plans are protected under federal law.

While easier, there are also many obstacles to disputing jointly-held property. One method is to notify financial institutions to that this property may belong to the probate estate. In response, the bank may freeze access and allow a challenger to negotiate a settlement.

These challenges may be disruptive and harm family relationships. An attorney may provide advice on options and potential settlement of these disputes.

Source: Consumer Reports, “How to contest a will,” Accessed April 18, 2017