When a person wants to invalidate a will, they might argue that the will was signed under the threat of physical attacks.Most wills are challenged for undue influence because of duress.The will doesn't represent the deceased's true intentions because it was overcome by another person.To prevent a will from being invalidated, you need to present evidence that the deceased did not sign the will.
Step 1: Understand the important parties.
Disgruntled beneficiaries or individuals left out of the most recent will will often challenge a will in court.The will doesn't represent the true wishes of the person who died.They believed that the will was signed under duress.Only interested parties can challenge wills in most states.An interested party is someone with a property interest in the estate.When a will is challenged in court, the will's validity will likely be defended by some family members.The estate is distributed properly if the decedent's wishes are carried out.If the will is invalidated, family members who have a stake in the case may be able to step in and defend it.
Step 2: You can read the complaint.
A person can challenge the validity of a will by filing a complaint or petition with the court.You should be aware that the contestant is challenging the will.The court might send you a copy of the complaint.
Step 3: The alleged duress needs to be recognized.
threats of violence or actual violence are typically involved in duress.It is rare in the context of wills.If threatening or violent acts are alleged to have influenced the deceased, you should read the complaint.You might not be able to figure it out if you read the court documents, because the contestant doesn't have to go into detail in the complaint.You might have to wait for the discovery phase of the lawsuit to find out what led to duress.
Step 4: If there is an allegation of undue influence, point it out.
Undue influence includes duress and is a broader concept.Most wills are challenged for influence.There is no simple illustration of undue influence, but courts look at a number of factors, including the mental fitness of the deceased when he or she signed the will and how involved the beneficiary was in the creation of his or her will.
Step 5: If a presumption applies, check it.
Some states have a presumption of influence if certain factors are present.In Illinois, undue influence is presumed to exist where the deceased had a fidelity relationship with a beneficiary.In other situations where the deceased put total trust in the beneficiary, this fiduciary relationship can arise.You might have had control of the deceased's finances.This is likely to create a fiduciary relationship.The beneficiary was trusted by the deceased.The will was prepared by the beneficiary.A substantial benefit would be given to the beneficiary.
Step 6: The lawyer who drafted the will should be contacted.
In how the will was created, there is evidence of duress and influence.Contact the lawyer who drafted the will.Ask the lawyer if he or she was involved in drafting the will.There is proof that the person who created the will was not influenced by anyone.There is proof that you were controlling or influencing the deceased if you contacted the lawyer about drafting the will and answered most of his questions.
Step 7: The people who witnessed the will should be contacted.
Two people watch the deceased sign his will.They can testify as to whether the deceased signed the will or not.If you received a big gift under the will and were hovering over the dead person, this is proof that you were influencing them.
Step 8: The deceased had sound mind.
It is possible to show that the deceased was of sound mind when he or she drafted the will.There is some proof that the person was not influenced by anyone.There are people that you can talk to.Ask if they noticed a decline in cognitive function.Is the person suffering from dementia or forgetfulness?How dependent were they on their caretakers?
Step 9: Provide proof of the deceased's health.
A person who is frail is more likely to be influenced.A court looks at physical health as a factor.You should try to find out if the deceased was healthy when he or she signed the will.You can get copies of medical records by contacting the personal representative of the estate.You can subpoena these records if the personal representative is hesitant.You can get testimony from the deceased's friends or family.
Step 10: Meet with an attorney.
A qualified attorney can help you build the strongest case possible.If you are the estate's personal representative, you may have already hired an attorney.Schedule an appointment and show your lawyer the complaint.You can get referrals from your local or state bar association.The community is served by providing referrals to member attorneys by the bar associations.If you are involved in a lawsuit, you should consider hiring an attorney.Only a qualified attorney can help you navigate the complicated procedure.Ask the lawyer how much he charges.
Step 11: Get the local rules of your court.
The rules published by the court should give you important information about drafting and filing legal documents.The court publishes these rules on its website.The rules need to be read carefully.The court will reject your answer if it is missing required information.Pay attention to deadlines.You probably have to respond to the complaint within 30 days.
Step 12: An answer should be drafted.
You can respond to the complaint with an answer.You respond to each allegation made in the complaint.The caption should be in the answer.The information at the top of the complaint is the court's name, the parties, and the case or docket number.A title is what it is.You can title your answer "Answer to" and then add the title of the complaint.Answers to the statements in the complaint.You need to admit or deny if you don't have enough knowledge to do so.You can go through them individually.Your signature and date.
Step 13: There is a certificate of service.
You might have to add a certificate of service to your answer.This document shows that you sent a copy of your answer to the other side.The certificate of service should be printed on a separate sheet of paper.The name and address of the person you served the copy of your answer to should be on the certificate of service.The method of service should also be stated.You must have the server complete a proof of service form in some courts.You file the form with the court after the server returns it to you.If you must use a proof of service form, read your rules.
Step 14: The answer should be filed with the court.
You should take the original and copies of your answer to the court clerk.To file the original, ask.You have to file before the deadline.
Step 15: To interested parties, serve notice.
Send a copy of your answer to relevant parties using the method you identified in your certificate of service.Remember to keep a copy for yourself as well.
Step 16: Get your witnesses lined up.
You should serve the witnesses with subpoenas if you want them to testify for you.The witnesses should only testify about what they saw.They can't say if the will was signed under duress or not.A friend or family member of the dead could testify that they saw you and the deceased together often.The person could testify that they never saw you threaten or abuse the deceased.This helps prove that there was no duress.The lawyer for the deceased can testify that he took the lead on drafting the will.You may be able to prove that you didn't exert too much influence.When the will was created, the doctor could offer an opinion on the deceased's mental and physical health.The evidence helps prove that you did not influence the deceased.
Step 17: Exhibits can be created.
There are documents you can introduce into the court.A document can be turned into an exhibit by affixing a sticker on it.You may need to make multiple copies of exhibits.You should make at least two for you and one for the other side.A power of attorney that shows someone other than you had power over the deceased's finances and health care decisions can be helpful.A copy of the will shows you didn't get a lot of benefit.There are written communications between the deceased and his or her lawyer.
Step 18: The contestant's witnesses should be cross-examined.
The contestant has to show that duress or influence existed.The witnesses will testify that they saw you threaten the deceased or control his behavior.You have to sit quietly and listen.The witnesses can be cross-examined.There are different purposes for cross-examination.Your lawyer might want to point out to the witness that he or she can't really know what kind of relationship you had because you and the deceased were rarely seen.It is possible to undermine a witness's credibility by showing bias.If the will is thrown out, you can show that the witness has an incentive to lie.For more information on cross-examination, see Question witnesses when Representing yourself.
Step 19: You can present your own witnesses.
You should be able to present witnesses second.Don't ask the witness leading questions.A leading question contains its own answer.The question "You met with the decedent alone, correct?" is a leading question because it asks for a "yes" or "no" answer.If you want to know what your job is, ask a series of general questions.I have been a lawyer for 20 years.I write wills, so what field do you specialize in?I met with one client, Mrs. Alice Smith.No one showed up to your office with Mrs. Smith.She came alone.
Step 20: The closing argument needs to be compelling.
Your chance to pull together all of the evidence and argue that the judge or jury should follow your interpretation of it is the closing argument.Specific pieces of evidence should be mentioned in order to refresh their memories.You can say, "Remember you heard from Mrs. Smith's doctor, who met with her the week that she signed her will."He said that she was in excellent mental health.The same thing was said by her attorney.He asked why she was changing her will.She said that it was her own idea.
Step 21: Wait for the judge's decision.
The judge will decide who won after the trial.If you win at trial, the will will be remembered according to the wishes of the person who died.If you lose, the will could be thrown out as the judge would rule that it was signed under duress.You can appeal to a higher court if you don't agree with the judge's ruling.You cannot appeal if the judge made a legal mistake, as opposed to a factual one.After the trial decision is made, you need to appeal.You might only have 30 days to file.