Loosing a loved one is hard. Learning that they were taken advantage of – and deciding whether or not to take legal action to go after those who have taken advantage of your loved one is even harder – including whether or not you should (or have the ability to) contest a will. When contesting a will, there are certain requirements that you should take into consideration prior to moving forward.
First, there must be reasonable ground for doing so. Just generally being removed from a will is not enough to contest its validity. Reasonable grounds typically include a will being forged, a will being signed under intimidation or duress, the decedent not having capacity to sign, or the document did not follow proper statutory requirements.
Additionally, when contesting a will, Virginia requires that you be an “interested person”. Typically, an interested person is someone who is entitled to receive property under the will or under the intestate laws of Virginia.
If you are able to proceed because you have a reasonable ground for doing so and you are an interested party, you generally have two available paths in the Courts.
The first is to appeal the clerk’s order admitting the order to probate in the clerk’s office of the circuit court having jurisdiction over the decedent’s probate estate within six (6) months after the entry of the order of probate. This essentially means six (6) months from the day that the court order was entered to approve the will.
The second options is controlled by the Code of Virginia § 64.2-448, and grants an interested person the right to file a complaint to impeach a will within one year from the date that it is offered to probate.
There are some exceptions to this rule, for example if you were incapacitated at the time of probate, or if you were a child at the time of probate. The statute of limitations will typically extend to one year after the individual has become capacitated or has become a legal adult.
Contacting an experienced will and estates attorney will allow you to understand these terms more clearly. If your attorney has established that you meet all three criteria, reasonable grounds for filing, being an interested party, and falling within the statute of limitation, they will file a complaint with the court. The court can then order a trial to determine whether the will being contested is that of the testator and was properly established.
If you have questions about the above, or are considering a will contest, you can reach us at info@wmmlegal.com or at (804) 423-1382. We would like to help.
