While it is important to engage a seasoned estate planning attorney to try and avoid the pitfalls associated with one’s estate, certain familial disputes cannot be prevented, no matter how savvy the estate plan. These disputes can arise from sibling rivalries, suspicions brought about by lack of communication, or just plain old greed.
Some of the most common estate litigation cases involve claims seeking to set aside one’s will as the product of undue influence or lack of capacity, setting aside an inter vivos transfer as the result of a change in the titling of assets either by a power of attorney or an heir altering the dispositive intent of the testator, demands for an estate accounting and objections to the accounting when produced, removal of an executor or trustee for malfeasance or breach of fiduciary duty, and guardianship disputes.
A will is a written declaration of an individual as to how he wishes his assets to be disposed of at death. In order for a will to have legal effect, it must be probated. Several attacks to the probate of a will can be asserted, including a claim that the testator did not intend that the document act as his will, that the proper formalities in executing the will were not adhered to, that the testator lacked sufficient mental capacity, that the will was procured as the result of undue influence, fraud mistake or misrepresentation, or that the will was revoked.
In a procedural sense, a caveat can be filed which prevents the will from being probated, or, once the will is probated, an action initiated by the filing of a complaint seeking to set aside the probate of the will. There are time frames and other procedural issues that must be considered and evaluated in addition to the merits of the matter and an experienced probate litigation attorney should be consulted immediately if wrongdoing is suspected.