When someone dies, their will is usually the legal document that dictates how their assets will be distributed. If you are named in the will as a beneficiary, you will generally receive what is listed in the will. However, there may be times when you feel like the will does not accurately reflect the testator’s wishes or when you feel like you have been unfairly left out of the will. If this is the case, you may want to consider challenging the will.
What Makes a Will Valid?
Determining the validity of a will can be a complex process. When figuring out whether a will is valid, a few key factors must be considered.
Must Be An Adult - The testator (the person creating the will) must be over 18.
Must Understand The Document - The testator must be able to understand the will and what it means for their estate.
Must Be Familiar With Beneficiaries - The testator must know of the beneficiaries in the will.
Must Know What Is Being Distributed - The testator needs to understand their property to make an informed decision.
Why Would a Will be Contested?
A will may be contested if someone believes it to be invalid. An invalid will is a document that does not meet the legal requirements (mentioned above) and is thus unenforceable in court. Reasons one might contest a will include:
● The testator lacked testamentary capacity.
● The will was created under undue influence.
● The terms of the will are unclear or contradictory.
● There is a technical defect in the execution of the will.
Eligibility Requirements for Contesting a Will
By Virginia law, only "interested parties" may challenge a will. An interested party is usually someone who is named in the contested will, named in an earlier will, or someone who would receive a portion of the decedent’s estate had they died without a will.
If a will is successfully contested and there is a prior will, then the decedent’s estate may be distributed according to the terms of the prior will. If there is no prior will, then the decedent’s estate may be distributed according to Virginia intestacy laws.
"No Contest" Clause
A "no contest" clause is a provision in a will that prohibits beneficiaries from challenging the will's validity. If a beneficiary unsuccessfully attempts to contest the will, they may forfeit their inheritance.
“No contest” clauses are generally enforceable, though there are some exceptions. Courts often refuse to enforce "no contest" clauses where there is clear evidence of fraud or duress. No contest clauses are also only enforceable if a person contesting the will us unsuccessful in overturning it. Whether a no contest clause is enforceable can be a complex legal question requiring the assistance of an experienced attorney.
Contesting a Will in Virginia
Obenshain Law Group has a long history of helping people through the legal process of contesting a will. Our experienced attorneys have a deep understanding of the law and are well-versed in the procedures involved in challenging a will. We have represented clients in probate court proceedings across Virginia, and we are prepared to handle all aspects of your case. Whether you are contesting the will's validity or disputing the distribution of assets, we will work tirelessly to protect your interests.
If you are questioning the validity of a will, call us today at (540) 318-7360 or visit us online for a free initial consultation.