Will Contest

When someone passes away, their estate settled though court supervised estate administration. Part of the process is submitting the decedent’s will to the court and asking the court to admit the will to probate. At this point, the court will entertain objections to the will. A will is a critically important document that determines what happens to a decedent’s property. In other words, a will determines who gets what. It is important that the court gets it right and only probates a will that is valid.

Procedure for Contesting a Will

Anyone wishing to object to a will must understand the procedure. First, only someone who has legal standing can contest a will. Sometimes multiple family members and even friends want to file objections to a will. However, only those who have an immediate financial interest in the matter have the right to contest. This includes beneficiaries and heirs, as well as beneficiaries of a prior or later will. Objections to a will must be submitted in writing. Neb. Rev. Stat. § 30-2428

  • Lack of testamentary capacity. In order for a will to be valid, the testator must have had a “sound mind” when they created the will. Neb. Rev. Stat. § 30-2326. Typically, it is a medical condition such as a traumatic brain injury or dementia that leads to mental incapacity. Note for the mental incapacity to be relevant to testamentary capacity, there must be evidence that the person lacked the requisite mental capacity at the time they executed the will and not at the time of death or any other time.
  • Undue influence. A will would have been created based on undue influence if the testator was manipulated into making a will such that the testator could not make a free choice about how their property should pass under the will. Typically, undue influence occurs in situations where the testator was vulnerable and the manipular held a trusting relationship with the testator.
  • Improper execution. Under Nebraska law, to be valid a will must be signed by the testator and properly witnessed by at least two people. If the will is not self-proved and evidence concerning its execution is necessary, the testimony of at least one of the attesting witnesses is required, but only if they are within the state and are competent and able to testify. If the will is self-proved, compliance with signature requirements for execution is conclusively presumed and other requirements of execution are presumed subject to rebuttal. Neb. Rev. Stat. § 30-2430

Consequences of a Will Contest

If the will contest is successful, the court will not probate that will. Instead, if another will is produced that is valid, the court will probate it. Otherwise, the estate would be intestate. This means that the decedent’s legal heirs will inherit the property. The decedent’s surviving spouse and children, if any, are a decedent’s primary heirs. Assuming there is a surviving spouse, under the rules if intestate succession, the spouse would be entitled to inherit as follows:

  • The surviving spouse gets the entire estate if there is no surviving issue or parent of the decedent
  • The surviving spouse gets the first $100,000, plus 50% of the balance of the intestate estate if there is no surviving issue but the decedent is survived by a parent or parents.
  • The surviving spouse gets the first $100,000, plus 50% of the balance of the intestate estate, if there are surviving issue all of whom are issue of the surviving spouse also.
  • The surviving spouse gets 50% of the intestate estate if there are surviving issue one or more of whom are not issue of the surviving spouse.

Neb. Rev. Stat. § 30-2302

No Contest Clause

Generally, testators want their estates to go through the probate process as quickly as possible so that their loved ones will get access to their testamentary gifts. In some instances testators anticipate that someone may object to the will and attempt to get it invalidated. To discourage frivolous will challenges, testators can include a “no contest” clause in their will that penalizes beneficiaries who object to the will. In Nebraska, the court will enforce such clauses are unless there is probable cause to challenge the will.

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