Probate litigation is the legal proceeding involving an individual's will, trust, or the settlement of an individual’s estate. Often the dispute involves relatives and challenging certain provisions of a will or an individual's entire estate. There are several reasons that litigation can be brought and it is always the facts which determine the type of action that needs to be brought or defended. In all probate litigation, there are strict requirements which need to be followed otherwise, even if there is a valid claim, a case will not proceed. Therefore, it is highly recommend that, if any type of litigation is being contemplated, legal assistance should be sought as soon as possible.
There are several reasons a person may want to begin litigation. However, it is important to understand that probate litigation should be used as a last resort, only after all diplomatic efforts to resolve the issue(s) have been exhausted. Because probate litigation usually involves family relationships, this type of litigation has a high probability of ruining the very foundation of the family. However, when it is necessary, probate litigation is usually brought forward for one (or more) of the following reasons:
• Claims of Undue Influence (claiming that the person who created the estate document did so but was persuaded by an individual who was in a position of control and trust).
• Mistake in Execution (challenging the validity of an estate document because it was not created according to all the provisions required for the estate document to be valid).
• Lack of Mental Capacity (claims based on medical records and behavior of an individual showing that the individual composing the estate document(s) lacked the mental ability to completely understand (1) the amount and nature of their assets and property, (2) who their natural beneficiaries are, and (3) how their property would distributed by the terms of the document).
• Appointment of a Personal Representative/Trustee or Breach of Duty (challenging the appointment of an individual to be the personal representative or trustee, or alleging that the individual has been derelict in their duties).
• Will Construction (requesting the court's assistance where the estate document is vague or does not completely dispose the entire estate or beneficiaries have passed away).
• Heir Determination (requesting a court's determination of heirs when an individual dies intestate or has little contact with his or her family).
• Account (asking the court to assist the beneficiaries in exercising their right to an accounting of the assets and property of the estate, or objecting to the accounting if it is unacceptable for any reason).