Idaho Estate Planning Should You Challenge Your Parent’s Will
For over 70 years our premier Idaho estate planning team has assisted clients in creating customized estate plans to meet their specific needs. Additionally, after a loved one passes away we have assisted clients in completing probate proceedings regardless of whether they did or did not have a last will and testament. In assisting our clients, we have seen countless circumstances where families have gotten along and also when they have not. Additionally, we have both assisted and defended family members when a parent’s last will and testament has been challenged. Through these experiences we have gained the knowledge and skills necessary to assist our clients in accomplishing their goals.
Our team of knowledgeable and skilled attorneys is made up of partners Randy Budge and Lane Erickson and attorneys Nate Palmer and Dave Bagley. Each of our attorneys has received the highest ratings possible from current clients, other lawyers and the judges we work with regularly on several legal ranking services, including Martindale-Hubbell, AVVO and Justia. We are confident that our team can help you too!
When a parent dies and leaves a written last will and testament it is often an opportunity for the family to pull together to strengthen their relationships with each other. However, this ideal circumstance doesn’t always happen. Rather, in many instances family members do not agree about whether their parent’s last will and testament should be considered valid. If you are thinking about whether you should challenge your parent’s last will and testament here are some things that you should know.When it is a Good Idea
The first thing that you should know is that there are in fact circumstances where it is a good idea to challenge your parent’s written last will and testament. If you have evidence that your parent in fact did not sign the last will and testament that is being presented, or if you have evidence that your parent was coerced or was unduly influenced to sign it then challenging the last will and testament is a good idea. Just keep in mind that it is not an easy thing to do.
If there is good evidence to show that in fact your parent did not sign the last will and testament then challenging it will remove that last will and testament because it will not be valid. We have seen this circumstance before. Normally, for a last will and testament to be valid, it must have two witnesses who sign the will testifying that they saw your parents sign the document as well as a notary to notarize the signatures of both your parent and the witnesses. If the will is holographic, it must be in the handwriting of your parent and be signed and dated. In both instances, there are safeguards to provide proof that it was in fact your parent who signed the document.
Additionally, when it comes to undue influence, the Idaho Supreme Court has held that “a will may be held invalid on the basis of undue influence where sufficient evidence is presented indicating that the testator’s free agency was overcome by another.” In re Estate of Roll, 115 Idaho 797, 799 770 P.2d 806, 808 (1989). If you have proof that a sibling, or other family member was pressuring your parent or drew up a will and then had your parents sign it without their opportunity to read it and understand it, then you may have enough evidence to invalidate that written will.
Essentially, it is a good idea to challenge a last will and testament when you have proof of two specific things. The first is that your parent did not sign it voluntarily. The second would be that your parent did not understand what the document stated or that they would not sign it until they were threatened or coerced in some other way. The key is that you have some proof or evidence that either of these things occurred. If you do not have proof or some sort of actual evidence that it may not be a good idea to challenge the will after all.When it is a Bad Idea
The second thing that you should know is that while there are circumstances where it is a good idea to challenge a written last will and testament, there are also times when it is a bad idea. The first of these circumstances would be if you have no evidence or proof that something bad has happened. This was discussed more fully above. The lack of proof will only cause problems because you will not be able to provide any evidence or testimony about what your parents told you they intended.
Idaho law follows what is commonly known as the dead man’s statute. This is codified at Idaho Code § 9-202 section 3, which defines who may qualify as a witness. In this section it specifically disqualifies a person as a witness who intends to testify that the decedent told them that they should receive a portion of the decedent’s money, property, or assets. In other words, you cannot testify for the dead person. That is the specific purpose of a written last will and testament which is properly witnessed and notarized before the decedent passes away.
Another reason why it could be a bad idea to challenge your parent’s last will and testament is if there is a No Contest Clause in the written will. A no-contest clause is a section in a written last will and testament that simply says that if a person challenges the will or any distributions made under it they will be treated as if they died before the decedent and as a result they will not receive any portion of the estate. The purpose behind a no-contest clause is to encourage family members to be nice to each other. If you challenge your parent’s last will and testament which contains a no-contest clause and you fail to provide adequate evidence or proof that the last will and testament is invalid or that there was a undue influence or coercion, then you could lose any inheritance that was listed in the last will and testament for you.Enlist an Idaho Estate Planning and Probate Attorney to Help You
If you have questions about whether you could or should challenge your parent’s written will, we can help. Our experienced Estate Planning team of attorneys can help you and your family with your Idaho estate plan or with your probate needs. Whether you are seeking your own customized Estate Plan or need a Probate for a loved one who has passed, we are available to discuss your options and answer your questions at an initial consultation. Call us toll free at 877.232.6101 or 208.232.6101 for a consultation with the Racine Olson team. You can also email us directly at email@example.com. We will answer your questions and will help you solve your Idaho Estate Planning and Probate problems.