The short answer is that it is not a simple process to challenge a will, but it certainly is possible. Under Kentucky law, a will must be probated in the district court for the county in which the decedent resided before he or she died. While it may be possible to challenge the will at the district court level, this is not guaranteed as the district court can accept and approve the will without holding a public hearing. Once the will has been approved, a person seeking to contest the will must file a complaint in a higher court.
There are a series of steps that a person will need to take in order to successfully file a challenge a will:
Step 1 - Demonstrate that the challenger has the standing to contest the will
Basically, this means that the individual was aggrieved by the decision of the district court to approve the will. There will need to be evidence that he is in a worse position than he would have been if the will had not been accepted. Please note that the opposite challenge also is possible, specifically, if the will were rejected by the district court, then a person whose rights were negatively affected by the rejection has standing to file a complaint.
Step 2 - File the complaint
After the district court has issued its decision on the acceptance of the will, the challenger has to file a complaint in the circuit court sitting in the same county as the district court. A person has two years to file the complaint; however, there is an incentive for getting this done faster. If the complaint is filed within one year of the district court's determination, then the distribution of assets pursuant to an approved testamentary instrument is frozen, thereby protecting the property in dispute.
Step 3 - Submit a notice to the county clerk
This notice must include pertinent information about the legal action, including the name of the testator/deceased, the nature of the circuit court action, the cause of action, the assigned case number, and the date of filing.
Step 4 - Serve the complaint
A copy of the complaint and a summons must be served on any person with relevant information about or interest in the legal proceedings. This means that anyone who can present evidence that the will was not valid must be served, as well as any person who would be negatively impacted by a circuit court decision that overrules the district court holding and rejects the will.
Common Reason For Changing a Will
If the circuit court does not overrule the decision of the district court, then there still is the option to appeal to the court of appeals in accordance with the Kentucky rules of appellate procedure. However, if the challenger successfully contests the will, then the property of the deceased will pass through the rules of intestacy or another testamentary instrument that is proven to be the valid will.
The reasons for contesting a will vary widely, but there are several common reasons to challenge the validity of a will:
- The testator did not have the capacity to draft the will - challengers will try to show that the decedent was not of sound mind at the time the will was executed.
- The execution of the will was not proper - there are many formalities that surround the execution of a will and if any of these were not completed to the letter, then the will is vulnerable to a challenge.
- The decedent executed the will because of undue influence or duress - proving this is very difficult under Kentucky law because it requires proof that the person exercising the influence had complete dominion over the mind of the testator at the time the will was executed, where the exercise of free will was not possible.
- The will is a forgery.
- The will filed for probate was revoked by the testator.
A person seeking to challenge a will requires attorneys with extensive knowledge of how to succeed in a will contest, such as the skilled estate litigation attorneys at Goeing Goeing and McQuinn, PLLC. Our attorneys are ready to discuss the facts of your case and will give you an honest assessment of whether the case has merit during a free consultation.
Call us at (859) 253-0088 or you can contact us online by filling out our online form.