How To There is a claim of undue influence in estate planning.
A person challenging an estate plan is usually called a contestant.If you are accused of undue influence or the estate's personal representative, you may have to defend the plan.An effective defense requires you to gather as much evidence as possible to show that the deceased acted alone.
Step 1: You can read the complaint.
A petition or complaint is filed in court when someone wants to challenge an estate plan.You should get a copy of this person.Understand the substance of the allegation by reading the document.Theaffidavit of objections could contain more detail.The facts giving rise to the belief should be stated in this document.
Step 2: Take a look at common signs of influence.
There is no easy definition of undue influence.The court will look at a variety of circumstances to see if the person who created the estate plan was influenced by someone else.The testator was old.The elderly are the most vulnerable and can be influenced by another.An unusual gift was made by the estate plan.A charity or non- family member may have received a large portion of the estate.Children might not have been included in the estate plan.Someone who received a large gift helped draft the estate plan.The person is alleged to have exercised undue influence over the testator, either for their own benefit or for the benefit of a close relative.The beneficiary was dependent on the testator.The testator relies on someone for care if they are physically or mentally infirm.
Step 3: Speak to the dead person's lawyer.
The lawyer who drafted the plan could be helpful.The attorney can testify about his or her impressions of the deceased.The lawyer can testify that the deceased took the initiative in obtaining an estate plan.This factor helps show that there was no influence.There is evidence of influence if a beneficiary takes the initiative.If the beneficiaries were involved in the creation of the estate plan.You have evidence that the testator acted on his own.The plan was designed the way the deceased designed it.It is possible that the deceased explained why he or she was cutting children out of the will.There is proof that there was no undue influence if the reasons are plausible.The person did not seem dependent on anyone.This factor would help prove that there was no influence.
Step 4: There are witnesses to the execution of the estate plan.
When a will or trust is executed, usually two witnesses watch the person sign and then add their own signatures.The witnesses can testify about what they saw.They can testify that the person was competent.This would help your case.
Step 5: The family and friends of the deceased should be contacted.
You want witnesses to testify about the deceased's mental and physical state when they created their estate plan.Ask the deceased's friends and family if they remember him at the time of his death.It is beneficial to your case if family or friends say the deceased was happy.
Step 6: Discuss the death with the physician.
You should be able to get the deceased's medical records if you are the personal representative of the estate.Evidence that the deceased was physically fit can rebut any suggestion that they were vulnerable to fall prey to influence.The doctor might be an expert witness.He or she could testify about the deceased's state of mind when the estate plan was created.
Step 7: Speak to the person who is alleged to have exercised undue influence.
The person identified by the contestant was probably trying to influence the deceased.This person could be you.If you are the estate's personal representative, you should reach out to that person to get their side of the story.One of the deceased's children may have been given more in the estate plan than the other children.You should meet with this person and take detailed notes.You want to know what they will say about their relationship with the deceased and if they ever threatened or intimidated them.
Step 8: You should hire a lawyer.
Unless the trust is very small, you should have a lawyer on the payroll.You will probably need to find a lawyer if you are defending against a claim of undue influence.You can get a referral from your local bar association.You should schedule a meeting with the lawyer once you have a referral.Before the event, ask how much they charge.If you meet for a consultation with the attorney, you will never meet again.You should hire a lawyer to represent you.Undue influence claims are complicated and you would benefit from an experienced attorney's help.
Step 9: You can draft a response.
You have to respond in a formal way.You can file an answer, response, or objection to the lawsuit.You will deny the allegations made in the complaint.Depending on the situation, you could file to have the case dismissed.If the person doesn't have legal standing, you can ask the judge to dismiss the case.In most states, you can't contest a will if you are an heir, a beneficiary, or a prior will.If the contestant took too long to file the lawsuit, you could ask the judge to dismiss the case.In Florida, you only have three months to file a lawsuit after being served with a petition for administration of the will.You have six months from the day the will is admitted into the court to file suit in Illinois.
Step 10: Your response should be filed with the court.
You need to file the original with the court after drafting your response.There should be no filing fee.You should call ahead of time to check.
Step 11: You can serve a copy of your response.
You have to give a copy of your response to the person bringing the contest.Anyone who was notified when the will was submitted would be included in the other interested parties.You can find acceptable methods of service by reading the rules of the court.Someone can deliver copies of your response.If the other side has an attorney, serve your response to them.
Step 12: Use "discovery" to gather additional facts.
The case could enter a fact- finding phase after you respond to the lawsuit.You can use discovery to uncover helpful information for your defense.You can question witnesses.In a deposition, you ask the witnesses questions.The questions and answers are usually recorded by a court reporter.Depositions help understand what a witness knows.If the witness has information that hurts your case, you can prepare for it.The contestant can be asked the names of any witnesses with information about the influence.You could contact each of the contestant's witnesses to find out how credible they are.
Step 13: A summary judgment motion is brought.
A motion for summary judgment can be filed at the close of discovery.You argue that there are no meaningful factual disputes for trial and that you deserve to win.The undue influence claim is defeated if you win the motion for summary judgment.Careful planning is required for summary judgment motions.You need to check to see if there are any factual disputes in the discovery.The case law in your state needs to be reviewed.If you have a lawyer, he or she will draft the motion for you.If you are representing yourself, you need to do this work.There is a motion for summary judgement.
Step 14: Think about how to resolve the dispute.
A lawsuit can cost a lot of money.After a while, the amount of money spent defending yourself could be more than what you would get under the estate plan.You should always think about what to do.You should consider mediation.A third party mediation will take place.The mediation job is to listen to all sides and come to an agreement that everyone can live with.The cost of mediation can be split between the participants.If you want to find a mediators, you can contact your local courthouse or bar association.Both can offer referrals.One could challenge the will or trust at a later date if interested parties are not involved in the settlement discussions.
Step 15: Prepare for trial.
All of the information you have about the dispute can be used to prepare for trial.Document, deposition transcripts, and other evidence should be taken out.Look to see what the other side will do.You have to counter it with evidence.You can serve your witnesses with subpoenas.A subpoena is a legal request to show up at court and give testimony.All of your witnesses should be served with a subpoena.A blank subpoena form can be obtained from the court clerk.Make copies of the exhibits.The judge is likely to give the other side a copy of the exhibits.An exhibit sticker can be attached to the original document to turn it into an exhibit.
Step 16: The contestant's witnesses should be cross-examined.
The person bringing the lawsuit is likely to present witnesses first.Each witness will be given a chance to be cross-examined by your lawyer.There are different purposes for cross-examination.You might want to show that the witness is biased.If the will or trust is declared invalid, the witness could inherit money.The witness has a reason to bend the truth.You can use cross-examination to find gaps in the witness's testimony.You might be accused of badgering the deceased and controlling his or her behavior.This witness may have only seen you with the dead person.If you are representing yourself at a trial, you should look at question witnesses.
Step 17: You can present your own witnesses.
You can present witnesses as well.When the estate plan was made, your lawyer should ask them questions to find out if the deceased was independent.If you have to ask witnesses questions, make sure you don't ask leading questions.A leading question contains its own answer and can be answered with a "yes" or "no."If you want to know what your profession is, ask a series of questions.Mostly the elderly, what kind of patients do you typically treat?Was Mrs. Esther Johnson a patient?How often did you see her?Around April 15, 2015, when was the last time you saw her?It was for a checkup.How did she look on that date?Very clear headed.She was talking a lot.
Step 18: Wait for the decision.
A judge or jury will hear your case.In some states, juries are not allowed for will contests, so the case will be heard by the judge alone.The judge will either uphold the will or trust after hearing all of the evidence.You can bring an appeal if you lose.You should talk to your attorney about this.