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Invalidating or Challenging a Will

The process of challenging a will takes the form of a lawsuit, filed in either the probate court responsible for the will or in a general court. When filed in a general court, the lawsuit often takes the form of an appeal of a previous ruling by the probate court – either upholding or invalidating the will. Whether in probate court or in general court, the will contest is an adversarial proceeding in which all parties have the opportunity to present evidence. Such evidence often includes testimony from witnesses who have personal knowledge of facts and circumstances that are relevant to the validity of the will. Such witnesses are usually people who knew the testator (friends and family), treated the testator (physicians, nurses and other health care providers) and/or provided services to the testator (attorneys, accountants, financial advisors). In addition to witnesses, each party may also produce documentary evidence such as contracts, medical records, videotapes, photographs, and correspondence.

Prior to the actual hearing in court, the parties have the opportunity to conduct discovery. Witnesses are interviewed, documents are reviewed and the respective cases are put on for trial. Witnesses are often required to give a deposition prior to the actual hearing. All evidence taken must be relevant to the issues related to the validity of the will. For example, if one issue is the testator’s mental competency when the will was signed, witnesses who can provide useful information about the testator’s state of mind will help the court in its search for the truth. Oftentimes, during the course of discovery and prior to the actual hearing, the parties will engage in settlement discussions and may, either by agreement or by order of the Judge, submit to mediation to explore whether the parties can settle their differences without the need for a formal trial. Because will contests often involve testimony that is conflicting and issues that are not clearly or easily resolvable, mediation can be a very useful and productive process for all parties.

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