How to Challenge a Will or Trust and Secure your Fair Share
Dealing with the passing of a loved one is difficult. Finding out that your loved one’s last wishes were not honored in his or her will is even harder.
After the passing of a loved one, you may be left with questions regarding the will, its enforceability, and the legal intentions of your loved one. You may feel that a recent care giver, a new spouse, or even your own sibling took unfair advantage of your loved one.
If you feel that the inheritance you received is inconsistent with that expressed to you during the lifetime of your loved one, or your inheritance has been cut off or reduced due to the undue influence of another, you may be able to contest the enforceability of the will. Our will contest lawyers will fight to secure your fair share.
At the Strom Law Firm, we will investigate the circumstances leading up to the execution, or modification, of a will or trust. If an unexpected change to a loved one’s will or trust has occurred, our lawyers will guide you through the probate litigation, while protecting your right to an inheritance.
Our Will Contest Attorneys Will Fight For Your Inheritance
South Carolina law allows an individual to leave his property to anyone he or she chooses, subject to certain exceptions, including the elective share, which entitles a spouse to a 1/3 share of the estate. A spouse may seek to enforce his or her entitlement to an elective share in the absence of a validly executed waiver.
Many family members do not realize that they can challenge a will even after the passing of a loved one.
A sudden, last minute change, especially combined with a debilitating illness can create a suspicion that your loved one may have lacked testamentary capacity, and/or been subject to undue influence, by a caregiver or another relative.
If your loved one suffered from diminished mental capacity, whether the result of mental illness, depression, senility, dementia, Alzheimer’s or over-medication, his or her cognitive function or reasoning may have been impaired. An allegation of diminished mental capacity can impact the enforceability of the will, giving rise to a will contest claim.
There also may be problems with the form of the will itself, including failure to follow legal formalities, which makes it legally unenforceable. The South Carolina Probate Court will not probate a will not property executed under South Carolina Law. In the event that the Probate Court determines that the will is not enforceable, the estate will pass under the laws of intestacy.
Reasons for challenging a will or trust include:
- Undue Influence and Coercion – Suspicion that your loved one was controlled, manipulated or pressured to change and/or execute a will or trust; Influence by deception or fraud, including a twilight marriage; pressure from a predatory family or friend who uses excessive insistence to bring about last minute changes to a will or trust including the addition or deletion of an heir or personal representative. Many times “new” friends, care givers, or even a love interest may gain the trust of the decedent in the last months of his or her life and convince or bully them to makes changes to the will.
- Fraud – Suspicion of fraud including forged signatures, fraudulent documents or false statements to the deceased that influenced how the will was drafted and then executed.
- Lack of Capacity – Not being of sound mind at the time the will or trust is executed; Lack of capacity may include dementia, Alzheimer’s, memory loss, impairment by drugs and alcohol, or another cognitive debilitating condition. If there is a question as to mental condition at the time of the execution of the will, there may be grounds to contest the will.
- Missing or Lost Will – When a will previously executed by the decedent is missing, or lost. In South Carolina, a lost will is presumed to be revoked. In some cases, a copy can be validated and admitted by the Probate Court with the testimony of an attesting witness. In the event the original will cannot be found, the assets of the state will be distributed as if the decedent dies without a will (intestate).
- Common Law Marriage – A claim of common law marriage by a boyfriend or girlfriend living with the decedent at the time of passing. In South Carolina, a common law marriage carries the same rights and obligations as a formal marriage, including inheritance rights. If a decedent purposely left a common law partner out of a will, the surviving common law spouse will still be entitled to the elective share, or one-third of the estate, absent a valid waiver. There are specific requirements that must be met in order to establish a common law marriage in South Carolina. Questions about the legality of a common law marriage may be grounds for contesting the will.
- Improper Will Execution – The South Carolina Code of law sets forth specific requirements regarding the validation and execution of a will. Improper execution of a will can occur when an interested party, or someone receiving a benefit from the will, serves as a witness.
- Last Minute Changes to a Will or Trust – Substantial last minute changes to the will or leaving a substantial portion to a charity, church or an individual can serve as grounds to challenge the will; Removal of a spouse or other heir prior to the passing of your loved one, or a change to the administrator or personal representative.
- Executor Misconduct or Misappropriation of Trust or Estate Funds by the Personal Representative – Evidence or suspicion that the personal representative designated to manage the property of the estate has misappropriated funds or other assets or negligently failed to act in the best interest of the estate.
How Much Does it Cost to Challenge a Will?
There is no charge for the first meeting. In most will contest cases, you will not pay any fees or costs unless we recover for you. In contingency fee matters, attorneys’ fees are calculated before deducting expenses from recovery.
No matter what your legal situation, the Strom Law Firm, L.L.C., offers a free consultation to discuss your probate and estate dispute. If you believe that you have unfairly been cut out of a will, or the trustee has abused his or her power, call us today at 803-252-4800.