experienced will contest attorneys in virginia
At Obenshain Law Group, we handle will contests. We are trial lawyers who help individuals and families in disputes over the validity of wills and trusts. If you are involved in a will contest – whether you are challenging a will or defending a challenge to a loved one’s will, we may be able to help.
How much time do you have to contest a will?
According to Virginia law, individuals wishing to contest a will generally have one year to do so from the date the will is filed with the clerk. However, there are specific situations where the timeframe may be shorter. In order to ensure that your case is handled in a timely manner and that you do not run up against the Virginia statute of limitations, it's important to discuss your concerns with a professional will contest lawyer as quickly as possible.
Common Reasons for Contesting a Will
Contesting a will is primarily about proving that a will should not be enforced exactly as it is written, or that an earlier (or later) will should actually be enforced instead for some reason. These are the two most common grounds for contesting a will or trust:
Lack of Testamentary Capacity
Your loved one’s mental state at the time his or her will was formed is very important to its validity in court. To execute a valid will, one must have testamentary capacity. If it can be shown that someone lacked testamentary capacity at the time they signed a will, a court can refuse to enforce the will, or set it aside.
In Virginia, there are a few things that must be true in order for someone to have the testamentary capacity to sign a valid last will and testament:
- Must be over 18 years of age
- Must understand the nature of the act they are performing – they have to understand what they are signing
- Must know the names and his or her relationship to “the natural objects of the testator’s bounty.” This means that they must know the family members and friends they would want to provide for in his or her will
- Must know the nature, condition and extent of his or her property
- Must understand the will and its provisions
Old age, physical frailty, illness, failing memory, or even drug or alcohol addiction are not always enough to effectively contest a will. All of these are important factors and may be evidence of incapacity.
There may be a strong basis for a will contest on the basis of lack of testamentary capacity if any of the following were true at the point a family member or loved one formed his or her will:
- They were under the influence of drugs, alcohol, or powerful medication
- They had a documented mental illness that would have interfered with his or her ability to meet the above requirements
- They experienced a serious brain injury, such as a contusion or concussion
- They had Alzheimer’s or dementia
If mental capacity was not an issue, a will may still be invalid on the basis of undue influence. This occurs when a third party uses his or her influence over someone’s will in a way that benefits themselves. Claims of undue influence may arise in instances where a child prepares a parent’s will and uses that influence to leave themselves a more substantial inheritance than they might otherwise have recieved.
Undue influence is often difficult to prove, but in Virginia, a presumption of undue influence may arise under certain circumstances:
- There was a confidential or fiduciary relationship – like power of attorney – between the testator and the person you believe has exerted undue influence
- The testator had a compromised or feeble mental condition (not necessarily so feeble as to be incompetent)
- The person believed to have exerted undue influence was active in procuring the will or causing it to be prepared
- There was a prior will that showed that the testator had a different plan or intention as to the disposition of his or her assets.
More Information About Will Contests:
If you're looking for additional information, try reading some of our latest blog posts about contesting a will in Virginia, or visit our Will Contest FAQ page for more answers to frequently asked questions!
- What is the Statute of Limitations for Contesting a Will in Virginia?
- 3 Costly Mistakes to Avoid When Contesting a Will
- This is Nuts! But is it Grounds for Invalidating a Virginia Will?
- Do You Need a Lawyer to Contest a Will?
- Undue Influence in a Will
- Is a Will Automatically Invalid If the Maker of the Will Had Alzheimer's or Dementia?
- What to Do If There Is a “No Contest” Clause in the Will
- How Can I Afford to Hire a Lawyer to Contest a Will If I Lack Finances?