The passing of a loved one is an incredibly difficult time. Dealing with grief and the stress related to finalizing the loved one’s affairs is hard for most people. Eventually you will have to deal with being informed of the contents of the family member’s will. Sometimes, the contents of the will is a complete shock to you. Either you have been left out entirely, a relative stranger has been added to the will or the will is very different from what you were told it would be. If any of these situations have occurred, you are probably seriously considering challenging the will. Contesting, seeking to overturn or making a challenge to a will in Wisconsin is referred to as a will contest. This article will provide a basic outline of what your options are and what you can generally expect if you decide to challenge the will.
Who can challenge a Will in Wisconsin?
The court requires that you have something called “standing” in order to challenge a will in Wisconsin. Standing is the court’s way of saying you have the legal right to petition the court to hear your complaint. You must have standing in order to bring a legal action.
In order to have the standing to challenge a will in Wisconsin, you must be a named beneficiary (this could be a person or an entity) in the current will or you can be a beneficiary who was named in a previous version of the will that has since been excluded by the current will. People named in the current or a previous will as a beneficiary, an executor or a trustee all have standing to challenge a will in Wisconsin.
Another way you could have standing is if you are not named in any will but have a family relationship to the deceased party that would have entitled you to inherit if the deceased party had died without a written will through the laws of intestacy. When someone dies intestate, the court determines the division of their estate by tracing legal or blood ties to the deceased party.
In some cases the court can elect to grant standing to other parties, like ex-spouses or former relatives, depending on the surrounding facts and circumstances.
Can an Executor challenge a will in Wisconsin?
An executor does have standing to challenge a will in Wisconsin. Any person named in the current will or a previous version of the will have standing to challenge.
What is the time limit to challenge a will in Wisconsin?
You can challenge the will any time before it is admitted into probate. It is in your best interests to challenge a will swiftly, before the will is admitted into probate. Do not wait to challenge the will. Challenging the will after it is admitted into probate is significantly more difficult. The timeframe for admitting a will into probate is usually 30 days after the petition to probate the will is filled unless there has been a written objection.
Wisconsin requires that anyone named in the will be notified in writing that the will is going to be admitted into probate so if you are challenging the will because you have been excluded from it, you will not receive written notice. You will have to either just act immediately or watch for an announcement that the will is going to be probated online or in the local newspaper.
Reasons to challenge a will in Wisconsin
There are three general reasons you could give for challenging a will in Wisconsin. The first two reasons explained are usually considered together, lack of testamentary capacity and undue influence.
- Lack of testamentary capacity: you can challenge the will by claiming that the deceased person lacked the requisite capacity to know what they were doing. In Wisconsin, anyone over the age of 18 and of sound mind is automatically presumed to possess testamentary capacity. In order to have the requisite capacity to create a will that can survive a challenge, it must be shown that the person who created the will understood what their property was, the value of the property and their relationship with the beneficiaries. It sounds fairly simple when stated that way but it is an extremely fact specific process to determine if the deceased genuinely understood the will and what it meant.
- Undue influence: If there is a an individual close to the deceased, someone who spent a lot of time alone with them towards the end of their life or had access to them prior to a change in the will, there may be ground to argue undue influence. The test for undue influence is made up of four parts. The court will look for the following:
- Was the deceased susceptible to undue influence?
- Did the accused have the opportunity to exercise undue influence? For example, was the accused a primary caregiver or in control of the deceased in some substantive way?
- Is the accused of the disposition to influence the deceased?
- Did the accused received the desired result?
- Lack of proper formation: Typically if a will can be challenged for lack of proper formation, it means that the will lacks the requisite formalities. The will could have terms that are not specific enough, for example not specifically identifying a beneficiary. The will must be signed by the deceased in the presence of two disinterested witnesses. They must all be in each other’s presence at the signing. Any addendums or modifications to the will must also be properly witnessed and signed off on or they may not hold up to scrutiny by the court.
Unintentional failure to provide for children born or adopted after creation of will.
If a child was born or adopted after the creation of a will and the will was not updated the court may decide that the child is entitled to a share of the estate unless it can be shown that that the omission was intentional. If the child was provided for on some way outside the four corners of the will (for example life insurance beneficiary) then the contents of the estate addressed in the will might not be redistributed. Court will look at the individual facts and circumstances and decide.
Steps to challenge a will in Wisconsin
Challenging a will in Wisconsin will mean litigation and you should consult with an experienced Wisconsin probate attorney as soon as you believe you will need to challenge the will. As discussed above, you have a very short timeframe in which to challenge so sooner is always better.
Wisconsin wills and “no-contest” clauses
Wisconsin allows wills and trusts to contain “no-contest” clauses, which means if a beneficiary contests the document they could be deprived of any transfer of property. Wisconsin does not choose to enforce the no contest clause rigidly however, which means if the beneficiary can show good cause for contesting the document, the court may not enforce the no-contest clause. Enforcement will depend on the individual facts and circumstances surround that specific situation.
How much does it cost to challenge a will in Wisconsin?
Typically a probate litigation attorney in Wisconsin will bill by the hour. Custom documents will need to be drafted on the litigant’s behalf and there will also be time spent appearing in court on the litigant’s behalf. Wisconsin requires all litigants to pay their own court fees unless one side can show that the other caused an unnecessary delay. If a challenger is found to have frivolously challenged a will, they may be required to pay the other side’s attorney’s fees. However you are not guaranteed to the get attorney’s fees awarded to you and should plan on paying for the litigation. In some rare cases, the challenger can ask that the estate reimburse them.
How long does it take to challenge a will in Wisconsin?
The important time factor is challenging in time. After the challenge there is no way of saying how long the litigation will take, so much depends on what each side of the lawsuit claims.
It is important to note that you should not challenge a will just because you don’t like the terms of the will or what you are to receive from the will. If you truly suspect some type of fraud, undue influence or lack of capacity, that is when you challenge. It’s important the you consult with an experienced Wisconsin probate litigation attorney who can properly evaluate your individual situation and advise you. Please feel free to reach out if we can help you.
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