The loss of a family member or loved one is never easy to accept. It can also be followed by a period of depression, denial, grief or other heightened emotions. There are also a number of practical steps that must be taken following a death, including the probate of the decedent’s Last Will and Testament if one was left behind. What happens, however, if you believe there is reason to question the validity of a decedent’s Will? What steps are involved in contesting a Will in Oklahoma and how do you initiate a Will contest?
The Probate Process Explained
Probate is the legal process that is typically required after the death of an individual. Probate is intended to serve several functions, including the authentication of a Last Will and Testament submitted on behalf of the decedent. If the Will is authenticated, the terms of that document will then be used to determine how the decedent’s estate assets are distributed. Anyone in possession of an original Will is required to submit that Will to the appropriate court to begin the probate process. If you wish to contest that Will, it should be done when the Will is submitted to the court for probate.
Contesting a Will – Preliminary Considerations
Before you can actually initiate the legal process of contesting a Will in Oklahoma there are some preliminary considerations you must address to ensure that you are legally able to contest the Will. To ensure that your Will contest may proceed, ask yourself the following questions:
- Do you have standing to contest the Will? In the State of Oklahoma, the first step involved in contesting a Will is determining if you have “standing” to initiate the Will contest. Standing refers to the legal right to bring the legal action, in this case, a Will contest. To have standing, you must be an “interested person.” As a general rule, this includes beneficiaries under the Will submitted to the court, beneficiaries under a previous Will, legal heirs of the estate, and sometimes a creditor.
- Are you within the time frame for contesting the Will? You need to initiate a Will contest within three months from the time the Will was admitted to probate.
- Do you have grounds for contesting the Will? Contrary to popular belief, simply being unhappy with the inheritance left to you (or not left to you as the case may be) is insufficient cause to contest a Will. Instead, you must allege (and ultimately prove in order to be successful) one of the following grounds, referenced in Oklahoma Statutes § 58-61, upon which the Will could actually be declared invalid:
- That a Will of a later date than the one proved by the decedent, revoking or changing the Will, has been discovered, and is offered; or
- That some jurisdictional fact was wanting in the probate; or
- That the testator was not competent, free from duress, menace, fraud, or undue influence when the Will allowed was made; or
- That the Will was not duly executed and attested.
Initiating and Litigating a Will Contest
A Will contest typically involves complex and contentious litigation. You should not undertake this without the assistance of an experienced probate attorney, and perhaps an experienced litigator. If you have decided that all the preliminary questions can be answered satisfactorily, the next step will be for your attorney to initiate the Will contest by filing the appropriate documents with the probate court where the Will was submitted for probate. The person appointed to be the Executor (now referred to as “personal representative”) of the estate is responsible for defending the Will throughout the ensuing litigation.
A Will contest proceeds as any other type of civil litigation with discovery and attempts to settle without the need for a trial. If the parties cannot reach a mutually agreeable settlement, the case will proceed to trial at which time the contestant must prove the grounds that were alleged to invalidate the Will.
If the contestant is successful, the Will is declared invalid. At that time, the court would look for another valid Will to use to probate the estate. If none exists, the estate will be probated according to the Oklahoma laws of intestate succession and estate assets will be distributed according to those rules.
If the contestant is not successful, the Will is authenticated and the estate assets are distributed according to the terms of the Will that was originally submitted to the court for probate.
Contact Oklahoma Probate Attorneys
For additional information, please join us for an upcoming FREE seminar. If you have additional questions or concerns regarding the steps involved in contesting a Will in Oklahoma, contact the experienced Oklahoma probate attorneys at Parman & Easterday by calling 405-843-6100 or 913-385-9400 to schedule your appointment today.