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August 2011 Archives

WHAT IS A WILL CONTEST?

A will contest is a challenge to probating what appears to be a basically valid Will. When a party believes that a Will is not properly admitted to probate they may contest the Will by filing an objection to the Will in the probate court. Once the objection to the Will has been filed the proponent of the admission of the Will to probate must prove that the deceased had testamentary capacity at the time that they signed the Will and that all proper formalities for signing a Will have occurred. Alternatively, the opponent of the Will may contest the Will on either this issue of whether there had been testamentary capacity and the formalities had been followed or they may contest the Will on the basis that there had been undue influence on the deceased at the time that they signed the Will. The burden of proof to prove testamentary capacity rests with the proponent of the Will, while the burden of proof for demonstrating undue influence or over-reaching lies with the opponent of the Will. Each case necessarily rests on the facts of that case and can only be properly evaluated by a lawyer who has experience with Will contests.

Waiving Service in Divorce Cases

In a suit for divorce, the spouse who filed the petition for divorce must serve a copy of the lawsuit to the other spouse. The spouse being sued for divorce can agree to waive service by signing a waiver. If both spouses want to get divorced and are on decent terms, agreeing to waive service can have certain benefits.