Contested Wills and Trusts Attorneys, RI, Estate lawyers, rhode island
Phone: 401-841-5700
Fax: 401-367-0192
Phone: 401-841-5700
Fax: 401-367-0192
While this topic is “contested wills” it really should be more properly denoted “contested documents and actions” because it is rare that only a will is contested. A “contest” is most often regarding behavior by others that caused the actions of a person (deceased or without capacity) to be challenged. The discussion applies also to a Revocable or Irrevocable Trust, a Durable Power of Attorney, a Medical Durable Power of Attorney, a Living Will Declaration, a beneficiary (transfer on death) designation, joint account applications, or any other document affecting finances or estate planning.
Contact the RI Contested Wills and Trusts Attorneys at The Law Offices of Jeremy Howe:
401-841-5700 or via EMail HERE. ***WE MAKE ELDER LAW HOUSE CALLS IN RI***
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But staying with contested wills for the moment, the purpose of the will is to describe your property in specific or general (but clear) terms and to detail your wishes as to the disposition of that property. It states who you want to handle your estate (the executor) and might arrange for a trust for a minor or a disabled person and might name a trustee and a guardian.
A “contest” might challenges any or all of the above purposes. The contestant may contest the assets, the heirs, the executor, the trustee or the guardian. Often, it is the action(s) of the “testator” and others when signing the will that are challenged. Was the testator of sound mind? Did he know the “objects of his bounty” and the “nature of his property”? Was he “under duress” or subject to “undue influence”?
A contest might also challenge or “contest” the procedures surrounding the execution of the will. When a will is signed, a careful attorney will follow a very precise ritual. Before the attorney begins the ritual he will review the will (and all other documents to be signed) completely with the testator. Once that is completed the witnesses will come in and sit (or stand) in the presence of the testator. The attorney will then ask the testator to sign each page of the will and the signature line.
The attorney will then ask
Then the attesting witnesses will sign in the testator’s presence and in each other’s presence. They will also sign an affidavit that all of the above occurred. The purpose of the ritual is to conduct every will signing the exact same way so that twenty years from now (for example) an attorney can honestly testify that he knows how the signing was conducted because he always does it that way.
Contact us with questions regarding RI Contested Wills and Trusts at :
401-841-5700 or via EMail HERE. ***WE MAKE ELDER LAW HOUSE CALLS IN RI***
Aside from the rituals, there are other methods of avoiding a will contest such as conducting a “capacity test” using some standard forms or even seeking a medical evaluation, taking careful written notes on the responses and actions of the testator and even video-taping the testator and the entire process of document-signing.
After the documents are signed, the witnesses to the will sign an affidavit which sets forth the process which occurred. If the will is challenged in the future, that affidavit will not suffice to “prove” the will. The proponent of the will is required to produce the witnesses to testify before the Probate Court. It is for that reason that we prefer to have the will signed in our office where the witnesses know the process and will be available if there is a future will contest.
Other documents do not require the same formality as a will but the attorney must inquire about the “capacity” of the person signing the documents and the circumstances surrounding the signing of the documents. Does the person signing a Durable Power of Attorney have “contractual capacity?” Again, a prudent attorney will be careful to document capacity and circumstances so that documents are not challenged by others in the future. In the final analysis, professional drafting of documents properly is the best way of proving that “An ounce of prevention is worth a pound of cure.”
Such contests and especially will contests are expensive, time-consuming and emotionally hard on the contesting parties. Probate mediation or arbitration is a good method of resolving such disputes.
At the Law Offices of Jeremy W. Howe, LTD, we handle estate planning, contested documents and actions, and administration everyday. If you or your loved ones are in need of experienced counseling or a situation may get out of hand contact the experience Estate Planning Lawyers at The Law Offices of Jeremy Howe at 401-841-5700 or via EMail HERE to set up a FREE CONSULTATION. ***WE MAKE ELDER LAW HOUSE CALLS IN RI***
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