The simple answer is yes. If you hire an attorney and give them lots of money, they will file just about anything you want them to. Of course, this is rarely a good idea and a good probate attorney should give you a real picture of your chances of success with a dispute.
So, how do you go about doing this? Every court has procedures. They live by procedures. They love procedures and if you want your challenge to make it and not be declared improper, there are procedures you too, must follow. For starters, there are deadlines for a family member or person to dispute a will. If you miss these, your chances of mounting a successful challenge just got a whole lot worse. The court might grant you a day in court, but don’t bet on it.
Next, you must have a lawful basis upon which your challenge is built. These generally fall under a few categories in Nevada. (Other states might be, and likely will be, different.)
- Undue Influence – This is a claim that someone else coerced or exercised some undue control over the testator (the person executing the will) which would nullify the will. Careful consideration of the circumstances is mandatory if Undue Influence is the basis for contesting the will.
- Fraud – Pretty much what it sounds like. A person could make a false allegation or implication about an intended heir. It could be anything from claims about personal behavior or criminal activity. Essentially, someone else lied about an heir to either cut them out of their inheritance or another person lies or deceives the testator to include them in a will.
- Incapacity – A will can be declared invalid if the testator is determined to not be of sound mind when the will was drafted and executed. Be aware that certain medical conditions like dementia are not automatically assumed to be valid reasons for an incapacity challenge. You may need to provide some proof, say from the decedent’s doctor, that the medical condition did indeed impair their mental faculties.
- Some other impropriety in the will – This challenge is based on the claim that the will wasn’t properly drafted, witnessed or otherwise executed. Perhaps the will wasn’t properly signed or there weren’t enough witnesses. Some states allow holographic wills which don’t require a witness or witnesses (Nevada does)
- Other procedural challenges – These could stem from improper notice regarding the start of probate proceedings. Could also come from some mishandling of the will by the original drafting attorney. Be aware, these are very much a case-by-case basis and you’d need to discuss this with your attorney.
In summation, you’ll need to have your ducks in a row before starting probate proceedings or trying to join proceedings already in progress. If you feel you have a valid case, contact an attorney right away. Those filing deadlines tend to be pretty firm and missing them will create a larger problem. Once you decide to go through with a challenge to a will, be ready to provide any supporting documents you may need. Have multiple copies of death certificates ready for anyone who asks. Having six or seven copies is not uncommon at all, and is cheap insurance. Why do I say that? If you have to send through the mail to a rural county for the deceased’s death certificate, it could take weeks and could cause you to miss a crucial deadline. Have them ready. Birth certificates may be helpful as well. An original copy of the will is worth its weight in gold. If you can obtain one, it will ensure you don’t have to try to “prove-up” another copy, which is a whole ordeal in and of itself. Once probate is open, stay on top of the proceedings. Stay in regular contact with your attorney to ensure he/she has everything they need for motions, filings, etc. Also, having documents handy means your attorney doesn’t have to go searching for them all while charging you their hourly rate. A $10 copy of a death certificate is a whole lot cheaper than your attorney charging you $300/hr + associated costs. Preparation is the name of the game. Listen to your attorney when they give you an honest evaluation of your case. Probate cases can be expensive, and hiring an attorney for $10,000 to go after a few thousand from a questionable will, may not be a wise idea.
