What happens when someone is disappointed with the statements made inside a will and is concerned about whether or not this is the right legal document to be accepted and submitted at probate? In Alaska, certain parties are eligible to challenge a will. A challenge to the validity of a will is a type of estate litigation called a will contest. A properly executed will is a legally enforceable document that instructs how the testator’s estate is to be disposed of upon their death. Alaska has strict rules related to the requirements for a will to be valid. AK ST § 13.12.502
To challenge a will, you generally must be able to illustrate and provide proof about the reason that you believe the will is not valid. For example, this can include allegations, such as execution errors, a revocation of the current will, a mistake made in the creation or signing of the will, lack of testamentary intent, lack of capacity, claims of fraud, or allegations of undue influence.
A will can only be challenged in Alaska when it has gone to the formal probate process. Most people do not realize that a will contest can be complicated, long and expensive. For those beneficiaries who believe that this process would eb streamlined or the personal representative who though they were taking care of a relatively simple estate, this can be a surprise and one that drains the assets inside the estate rather quickly.
It is often good to try to work out any difficulties with a personal representative under a will where possible. If you have strong evidence, however, that the will submitted for probate is not valid or legally accurate, you will want to consult with a will contest attorney in Alaska to move your case forward.
To open a will contest you will need to petition in the formal probate court why you object to the will. If the court has already accepted the will to informal probate, you will need to ask the court to update this proceeding to a formal probate process. At least one hearing will be scheduled after a person has opened a will contest so that the court can listen to both sides.
Either side maintains the right to request a jury trial and have a jury evaluate whether a will is valid or not. This kind of dispute might not be perceived as involved and as complicated as litigation but it easily can eb. The stakes are quite high when family members do not agree on interpretations or versions of the will. Recognize that this can be as involved as estate litigation because it enables parties to ask for discovery, attend mediation, take depositions, present evidence, subpoena witnesses, and more.
The kind of evidence that is required depends on the type of challenge to a will. It can include things such as handwriting samples, sworn statements, doctor reports, documents, testimony and mental health reports. If you believe that you might have grounds to challenge a will, it’s a good idea to talk to an attorney. Some people choose to include a penalty clause to prevent people from challenging a will but these do not always work as intended. A penalty clause states that if a person challenges a gift under the will or any part of the will, that individual will receive nothing.
If the person reasonably believes, however, that the challenge is necessary the penalty clause does not apply. Because of these complex factors it’s good to have an established relationship with a will contest lawyer and to engage with this person when you believe that a dispute is brewing.