BY JULIE M. RYAN
A common question regarding the estate of a recently deceased person is whether he or she had executed a will. A will states how to dispose of a person’s property upon death and usually appoints a personal representative to settle and distribute the estate. A will is a forward-looking instrument, meaning it is not operative until (1) the testator dies and (2) it is offered to and certified by the probate court as the last valid will of the decedent.
In Nebraska, any interested person (e.g., heirs, devisees, children, spouses, creditors, beneficiaries) can challenge a will that has been admitted for probate by filing a petition asking the court to prevent or set aside probate of the will being contested, to probate a different will, or to distribute the decedent’s estate pursuant to intestacy statutes.
Will contest litigation is oftentimes expensive, emotionally taxing, and may extend for several years. Still, it can be worth pursuing when there are legitimate grounds for believing the will at issue is not valid and there is a large-value estate at stake.
Some legal grounds upon which will contests may be brought are as follows:
1. Revocation: The will was not the last-executed will of the decedent because it was revoked by a later-executed will or it was later-revoked by an act such as burning or tearing.
2. Improper Execution: With some exceptions, Nebraska law generally requires a will be in writing, signed by or at the direction of the testator, and signed by two individuals who witnessed the testator’s signing of or acknowledgment of the will.
3. Lack of Capacity: To execute a will, a person must be over the age of 18 and be of sound mind with regard to their estate, their natural beneficiaries, their desired dispositions of assets, and their desired plan for disposition of property.
4. Fraud/Forgery: For example, a third party signed the testator’s name to the will without the testator’s knowledge or consent, or an incorrect or incomplete will was given to the testator for execution.
5. Undue Influence: The testator was subject to undue influence, there was an opportunity for the third party to exercise undue influence over the testator, there was a disposition to exercise such influence, and the third party’s undue influence clearly led to the testator changing his or her estate plan in connection with the will at issue.
6. Vagueness: The will, or some portion of it, is too indefinite or uncertain to effectuate any testamentary purpose of a will.
This article is not meant to cover all legal issues concerning will contest litigation. Contact Julie at [email protected] to learn more.