Contested Wills and/or Succession DisputesSchedule a Consultation
There are various reasons why a person might want to contest a Will. Sometimes, people will decide to leave money or property to charity, or to other entities who are not closely related to the Decedent. If their family members weren’t expecting the unexpected disposition of the estate, they often assume something went amiss in the drafting of the Will. If a large amount of money or property is being disposed, the person excluded from the Will may believe that the cost and time of a court challenge is a worthy challenge.
Contesting a Will is a big decision. This type of litigation is time-consuming and costly. It also has the possibility to damage family relationships and foster strife among individuals who are already mourning the loss of a loved one. When you contest or object to a Will, it is asserted the Will was not legally executed according to Louisiana law. The three most common reasons for contesting a Will include:
- The person making the Will was under undue influence. The person making the Will (the Testator) was pressured or unduly influenced by someone else to create the Will or to include a specific provision.
- The Will was not created in accordance with Louisiana law. Louisiana law has specific requirements about how to make a Will. Whether the Testator created a Notarial Will or an Olographic Will, the particular requirements must be met. For example, Notarial Wills must be written, signed, dated, and witnessed. Olographic Wills must be handwritten, dated and signed. Non-compliance with formal requirements for creating or executing a Will are grounds for contesting the Will. The burden is on the person contesting the Will to prove that the Will does not meet the legal requirements.
- The Testator lacked the mental capacity to create a Will. Generally, it is exceedingly difficult to prove that a Testator lacked the mental capacity to create a Will. The Testator must generally understand the nature and consequences of creating a Will and the provisions of the Will. The person contesting the Will must prove by clear and convincing evidence that the Testator lacked this capacity at the time the Will was executed. Evidence may include medical records from around the time the Testator created the Will, lay witness testimony, and expert witness testimony.
Only people with an interest in the outcome of a succession case can formally contest a Will in Louisiana. In other words, if you have: (1) a legal reason to challenge the validity of the Will; and (2) the right to inherit property either through the Will or Louisiana’s laws of intestacy.
Generally, intent of the Testator controls the interpretation of the Will. Louisiana law provides that:
- If the language in the Will is clear, the court may not disregard the language in the Will to pursue the spirit of what the Testator may have intended, and no other evidence should be considered. If an attorney drafted the Will, there is a presumption that the attorney knew the law and clearly expressed the Testator’s intent when writing the Will.
- The rules for Will interpretation only apply if the court can’t ascertain the Testator’s intent from the Will’s written language.
- When the written Will is ambiguous, the court may use competent evidence to interpret the Will.
- If a testamentary term changes after a Will is executed, then the court may consider what the legal term meant when the Will was executed to determine the Testator’s intent.
Thus, when a legacy or other testamentary provision is disputed, the court will consider the Testator’s intent by considering the written language of the Will and, if necessary, looking at competent evidence of what the Testator intended. Often, it is difficult to prove that someone either did not have the necessary capacity, or they were unduly influenced. These battles among potential heirs are litigious, nasty, difficult, lengthy, expensive, and they wreck family relationships.
Our firm can assist you for determining whether to contest a Will. Please contact us at 504-837-1304 or 985-624-9697 to discuss the viability of contesting a Will.
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