If you recently lost a loved one you are undoubtedly going through a grieving process that includes a number of heightened emotions. Not long after your loved one’s death, a Last Will and Testament may be submitted to the appropriate court to initiate the probate process. If you have reason to believe that the Will submitted for probate is not valid, you may be entitled to challenge the Will. In order to challenge the Will, you will need to know how to contest a Will in New Hampshire. Contesting a Will can be a very complex legal process that should only be done with the assistance of an experienced New Hampshire estate planning attorney. It may be beneficial, however, to learn more about what is involved in contesting a Will before you decide how to proceed.
Do You Have “Standing” to Contest a Will?
Probate is the legal process that is required following the death of an individual. The probate process starts when someone files an original Last Will and Testament (if one was located) with the appropriate court. It is at this time that you may challenge the Will’s validity if you choose to do so and if you have “standing” to do so. “Standing” is a legal term that mean you have the right to participate in the proceedings. To file a Will contest, you must have a pecuniary interest in the estate of the decedent. Typically, this includes:
- Beneficiaries under the Will submitted to probate
- Legal heirs of the estate
- Beneficiaries under a previous Will
- Creditors of the estate
Is There a Time Limit for Filing a Will Contest?
Yes. If you wish to contest a Will that has been submitted for probate, you must do so within six months of the time the Will was allowed by the court. If you fail to contest the Will within the allowable time frame you effectively waive your right to do so and the Will submitted to the court will be used to probate the estate.
What Are the Grounds for Contesting a Will in New Hampshire?
People are often under the mistaken belief that a Will contest can be filed by a beneficiary or heir based solely on the fact that the individual is unhappy with his/her inheritance (or lack of inheritance). In reality, however, you must allege grounds on which the Will itself can be declared invalid when you file a Will contest. Ultimately, you will have to prove those grounds as well if you wish to be successful in the Will contest. In New Hampshire, the following grounds may be used to challenge a Last Will and Testament:
- Improperly witnessed – to be valid, a Will must be “signed by 2 or more credible witnesses, who shall at the request of the Testator and in the Testator’s presence, attest to the Testator’s signature.”
- Lack of testamentary capacity – the most commonly used ground for contesting a Will. For a Testator to have the capacity necessary to execute a Will, he/she must:
- Understand the act of making a will;
- Understand the property to be disposed of and its general nature;
- Understand his or her natural objects of affection, usually the testator’s nearest relatives;
- Understand and intend to carry out the will’s dispositional scheme; and
- If capacity is present, the will must not be the offspring of a delusion
- Undue influence – undue influence exists if it “took away the free will of the Testator, and substitute another’s will for his, so that in fact the instrument is not the expression of the wishes of the Testator in the disposition of the property, but of the wishes of another.”
- Fraud — the intentional concealment of a material fact as well as in a false statement of a fact.
- Revocation – the discovery of a subsequently executed Will that revokes the Will submitted to the court for probate.
What Are the Legal Steps Involved in Contesting a Will?
Once you have confirmed that you have standing, valid grounds, and have not exceeded the time frame for contesting a Will, you will need to file a petition with the court challenging the Will. The petition must allege one, or more, of the grounds on which the Will could be declared invalid. For your Will contest to be successful, you will ultimately have to prove the grounds you alleged in the petition.
Contact Us
If you have additional questions or concerns regarding how to contest a Will in New Hampshire, contact the experienced New Hampshire estate planning attorneys at Debruyckere Law Offices by calling (603) 894-4141 or (978) 969-0331 to schedule an appointment.
Daniel DeBruyckere
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