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Charleston Estate Planning & Asset Protection Blog

Friday, February 8, 2019

Contesting a Will

In addition to the grief and sense of profound loss that accompany the loss of a loved one, some individuals and families experience the added stress of being involved in a contested will. If you are dealing with such complications in Charleston County, South Carolina, you fortunately have access to the outstanding estate attorneys of Wiles Law Firm. Located in Mt. Pleasant, we pride ourselves on being knowledgeable, resourceful, and responsive to our clients’ needs.

Taking Prompt Action Is Important

As with most legal matters, there is a statute of limitations for contesting a will. Typically, a will can be contested for up to 2 years from the date it was probated. Exceptions are made when a newer will is discovered after that period of time, when evidence of fraud or duress is uncovered at a later date, or when an heir who was a minor at the time of the decedent’s death reaches maturity and questions the terms of the will.

Reasons for Contesting a Will in South Carolina

While you may not think a will is fair or you take exception to the beneficiaries the testator named, that doesn’t mean you have legal grounds for contesting it. If you are uncertain as to whether or not you have a winnable case, your best bet is to consult with one of our savvy estate attorneys who can clarify your best options.

At Wiles Law Firm, we have the experience and the know-how to assess your likelihood of success and will be frank with you about your chances. Once we take your case, however, our team will fight tirelessly and aggressively for your right to inherit. There are four legitimate causes for contesting a will:

Lack of Proper Formalities

In order for a will to be considered properly executed in South Carolina, certain prerequisites have to be met: [1] the will must be legally drafted [2] the testator must be over the age of 18 and [3] the signing of the will must be witnessed by two individuals (also over 18) who sign their names and write down their addresses.

It is not necessary that the will be notarized, however doing so will accelerate the probate process by “self-proving” the document in the eyes of the court. You should be aware that an oral (nuncupative) will is not legally binding in South Carolina. Neither is a handwritten (holographic) document unless the latter has previously been validated in another state.

Lack of Testamentary Capacity

According to South Carolina law, the person who signed the will must have been mentally competent at the time of signing. If the charge is made that the testator lacked mental capacity or reason at the time he/she signed the document, the will may be declared void. Proving incompetence is not easy, however, because it requires proof that the deceased’s conduct or mindset was irrational. Either medical evidence from a well-credentialed physician or believable testimony by impartial witnesses must be presented.

Undue influence

Like lack of capacity, undue influence is a common reason for contesting a will. In too many cases, a caretaker, healthcare worker, advisor, or “friend,” upon whom an older, often cognitively impaired, patient depends, will manipulate the testator. By coaxing, coercing, or even threatening, the guilty party may succeed in having the will changed to make him or herself a major beneficiary. It is also possible for a legitimate heir (often also a caretaker) to pressure the testator to cut heirs or other beneficiaries out of the will to increase the share of his or her inheritance.

Fraud or Forgery

In some rare cases, the will itself is fraudulent, meaning that it was drafted as part of a con game, was forged, or was recreated as a false document in order to benefit the person who committed this crime. If it can be proven that the will is not the actual testament of the decedent, for example by a forensic handwriting expert, the will can be voided by the court.

Heirs and Beneficiaries Are Not Always Synonymous

Some wills are contested on the basis that a “rightful heir” has been left out of the decedent’s will, perhaps replaced by another beneficiary. Unless the would-be heir can prove malfeasance, however, the decedent had the right to disinherit a child, grandchild or other heir-apparent. Nevertheless, anyone who would have been an heir if the deceased had died intestate (without a will) has the legal right to contest the will, as do any and all beneficiaries named in the document. The only person who cannot be disinherited in South Carolina, whether or not mentioned in the will, is the spouse. In this state the spouse at the time of death, regardless of the length of the marriage, is entitled to one-third of the estate.

If You’re Contesting a Will in South Carolina, Contact Wiles Law Firm

Contesting a will is never an easy task. It requires legal insight and finesse. You can find both at Wiles Law Firm where we have excellent credentials and a track record of success. If you are contesting a will, there is obviously a great deal at stake, both financially and emotionally. Let our talented estate attorneys tackle this difficult task for you. We will fight forcefully to win your case and get you the inheritance you deserve. We can be reached by phone, email, or by filling out a contact form on our website.

 


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Wiles Law Firm, LLC helps clients with their estate planning needs in Charleston, South Carolina and the surrounding areas such as West Ashley, Summerville, North Charleston, Mount Pleasant, and John's Island.

Information on this website is not legal advice. Further, viewing of the enclosed information does not create an attorney-client relationship with Wiles Law Firm, LLC. Matters will be handled by attorneys who primarily practice out of our office in Charleston County located at 852 Lowcountry Blvd., Ste. 101, Mt. Pleasant, SC 29464. M. Emerson Wiles, III is the attorney responsible for this advertisement.

Any result Wiles Law Firm, LLC may achieve on behalf of one client in one particular matter does not necessarily indicate similar results can be obtained for other clients. Please contact a South Carolina estate planning attorney or one of our attorneys with Wiles Law Firm, LLC for a consultation regarding your unique estate plan.



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