A few years ago, former Playboy model Anna Nicole Smith made headlines with her protracted legal battle over the estate of her billionaire husband. Disputes over wills and inheritance, however, are not limited to the rich and famous.

Several societal trends are increasing the chances that people may have – or believe that they have – a reasonable basis to challenge a will. This is partly because family members often live in different areas, causing the burden of caring for an elderly parent to fall on one person. This “caregiver” may have unique or exclusive access to financial records. At the same time, people are living longer and may experience dementia or other medical issues. High divorce rates lead to second or third families, where not everyone is friendly with each other. General economic conditions are challenging. Family disputes, rivalries and greed create additional conflicts that may motivate someone to challenge a will.

So what happens if these or other factors exist and then a will – unexpectedly – excludes you? If you are related to the deceased or if the deceased promised to give you something in an earlier will, you may be able to challenge, or “caveat,” the will.

Someone who wants to invalidate a will may do so by proving one of the following: (1) fraud, (2) drafting error, (3) lack of mental capacity of the decedent or (4) undue influence over the decedent. Cases decided over technical, drafting errors are rare. Thus, will disputes usually hinge on whether the decedent knew what he or she was doing and whether he or she did so voluntarily. The primary proof problem is that the person who signed the will is not available to be a witness!

Challenging a will is difficult and costly and thus often it is preferable to resolve disputes without litigation. Even when you strongly suspect foul play, you must also consider whether it makes sense to proceed. Are there ways to resolve the dispute without a lawsuit? Will a legal challenge cost more money than you might receive? What effect will challenging this will have on other family or personal relationships? And, of course, do you have a strong case?

Here are some questions that may help you evaluate your case:

• Was the decedent isolated from friends and family?
• Was the decedent heavily dependent on someone for care or companionship?
• Did someone have access to or control the deceased’s finances?
• Was the decedent physically, mentally or emotionally vulnerable?
• Is the will inconsistent with the decedent’s life or promises?

Anyone who wants to challenge a will after an estate is opened must take action quickly. Maryland, Virginia and the District of Columbia prohibit will challenges if the petitioner does not bring them within six months or a year of certain key events.

Mike Goecke is a litigation attorney at Lerch, Early & Brewer who represents people challenging (or defending) wills and trusts in probate court. If you suspect will tampering or if someone is accusing you of interfering with a will and you would like to discuss your options, contact Mike at (301) 657-0185 or [email protected].