Home Law Challenging Legacies: A Comprehensive Guide to Will Contests

Challenging Legacies: A Comprehensive Guide to Will Contests

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When a close member dies, beyond the pain, one can sometimes be faced with other torments. Because when the curtain falls, we discover the existence of a will with sometimes very surprising content. Family affairs are delicate and often require the support of competent professionals who are attentive to your needs to do things like petition to contest will etc. 

The different wills

What is the will for? Writing a will with attorneys like Barr & Young Attorneys for example allows you to organize your estate. It makes it possible, for example, to decide which property belongs to whom, to grant a larger share of the inheritance to one of their heirs, or even to allow a third party to receive a share of the inheritance. It can therefore be a source of litigation.

In its form, a will must, above all, meet the conditions of validity and following of the Civil Code. The notary remains the best guarantor of the correct drafting of the legal act: establishing with his assistance an authentic will ensures that the deceased’s last wishes are respected in a more certain way. It must be drawn up in the presence of two notaries and two witnesses.

But this is not the only form of will. The holograph will is a private deed written by the deceased. The holographic will be registered with a notary. It will therefore be easier to find insofar as the holographic will be registered in the central file of the dispositions of last wills, which the notary will consult at the time of the opening of the succession. To ensure the validity of the holographic will, it is once again important to respect the formalism imposed by the Civil Code, particularly in terms of date and signature: it must indeed be entirely written, dated, and signed by the hand of the testator.

When can I contest a will?

An estate is managed during his lifetime. When you are the guarantor of an important heritage, it is wise to organize your succession and be well-surrounded to prevent your family from tearing itself apart. But sometimes the distribution can surprise, and some heirs can feel cheated, hence the choice of contesting a will.

The will may be contested if it does not respect the formal conditions imposed by law, in the event of insanity of mind at the time of its drafting, if the legatee is not authorized to receive a bequest, in the event of an infringement of the hereditary reserve, etc.

Regarding the formal requirements, as indicated above, the holographic will be written entirely by the hand of the testator and be dated and signed. The absence of a signature could therefore be at the origin of the contestation of the holographic will. In case of doubt about the deceased’s handwriting, it will be possible, for example, to involve a handwriting expert.

Furthermore, the Civil Code sets out a general principle that to dispose of all or part of one’s property or rights free of charge for the benefit of another person (by gift or by will), one must be sane. In addition to the mental state, this means that the act will be null in the event of the vice of the author’s consent by error, fraud, or violence. It should be noted, however, that proof of the testator’s insanity of mind will be difficult to report: it will be necessary to prove that he did not have his means at the time of drafting the will.

Persons unable to receive a bequest include doctors or medical auxiliaries who treated the deceased during the illness from which he died. A child forgotten in succession may act in the event of an infringement of his reserve to justify an action to reduce excessive liberalities.

The provisions made by the deceased may, in particular, show a weakness of the estate assets: a significant part of the real estate assets may no longer be in the estate assets because it would have been transmitted by way of a civil real estate company (SCI) to the disadvantage of an heir. In some cases, inheritance concealment can be characterized.

In many successions, the testator, who wishes to organize the distribution of his assets during his lifetime, may choose the most advantageous law, generally favoring his heirs. It is common to transmit one’s assets through a family SCI to facilitate this transmission. The real estate registered in the company’s assets will be transmitted to the heirs in the form of shares to allow easier management.