![]() ![]() “The statutes of limitations really depend on the circumstance, which is why consulting with an attorney about your case is critically important,” says Zinn, adding that attorneys know what you have to file and when, and can help with discovery and issuing subpoenas. If you are looking to contest a will, know that a settlement typically occurs within one year of filing, but a trial can last longer, maybe even up to three. ![]() “Mediation is about learning your risk, and what’s going on on the other side of the table.” “Even if you don’t settle, you get to walk away with far more knowledge about your case than you had going in,” Zinn says. Sometimes, an abbreviated discovery will take place beforehand, so there is enough information exchanged to induce a settlement. ![]() A fourth factor is that judges will often force parties into mediation early on. Zinn estimates that 98% of will contests settle before trial, and both attorneys note that cost, time and stress all play a role. In this instance, the most critical witnesses will be the drafting attorney and the medical treatment provider, who will need to speak to how the decedent was the day they signed the document. If the decedent had some notation of dementia in their records, this frequently provides a toehold for someone to challenge their capacity. That’s when you start your inquiry into the testamentary capacity of the person who is executing that will.” “It gets a little dicier when you have a will that was drafted very close to the time of death, that’s handwritten, and doesn’t have any witnesses or notary. “If you have an older will that hasn’t been changed, was prepared by a professional, and had two witnesses and a notary, that is going to be a very hard will to challenge,” she says. When a client hopes to contest a will, Ebisch first looks at the will to determine whether it was witnessed and if the signature by the creator (known also as a testator or decedent) was notarized, as well as when it was executed. It’s really small examples, when taken together, that paint a picture of what actually happened.” “Very seldom do you have direct evidence of someone unduly influencing someone else. “That can be really challenging in some circumstances, especially because undue influence is often proven through circumstantial evidence,” she continues. A lot of times we see cases involving forgery. More common reasons are the will is a product of undue influence, lack of capacity, or both. “Maybe the will doesn’t contain an actual signature, or it’s a copy-not an original. “The law requires we prove that the will is not valid by clear and convincing evidence,” says Alison Zinn, an estate and trust litigator at Lathrop GPM in Denver. Or, rather, you can, but you likely won’t succeed. “Will contests usually get started when people have expectations based on what their parent has told them will happen with their estate that are different than what that parent wrote in his or her will,” says Jane Ebisch, an estate and trust litigator at The Ebisch Law Firm in Lakewood.īut you can’t simply contest a will or trust because you think what’s been designated is unfair. Many cases arise from blended families-be it a second spouse inherits more than the decedent’s children think they should, or the kids believe the stepsiblings should have been left out altogether. Will contests are often a culmination of a lifetime of perceptions about family interactions. ![]()
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