Losing a loved one is challenging on its own without the added strain of fighting over the decedent’s last will and testament. Contesting a will can bring about unnecessary bitterness, and it is best resolved swiftly and fairly so that the heirs and benefactors can move on with their lives and bring much-needed closure to a difficult time.
If you are the victim of a will contest in Kentucky, this article will give you the essential information you need to understand the will contest procedure, when people can validly contest a will in Kentucky, and what you can do about it.
This is not legal advice. Please always consult with a competent estate planning attorney for any specific advice on your particular case and situation.
There are several grounds under which a will in Kentucky can be contested. Some of these grounds are more likely to succeed than others.
To contest a will under these grounds one must prove that the influencer has destroyed “every chance of the exercise of [the testator’s] own will on his part in the disposal of his estate,” according to the Kentucky Court of Appeals.
As a result, this is a rare reason for contesting a will in Kentucky.
Some examples of where this could be the case might include:
A forged signature is grounds for contesting a will in Kentucky.
If someone gets the testator to sign a will when the testator believes they are signing another type of document, this is also considered fraudulent.
If the will was written and/or signed in the presence of an attorney, contesting a will on these grounds is highly unlikely to succeed.
Notes on napkins or rapidly scribbled documents can be contested under the grounds of lack of testamentary intent.
To prove a will, one must prove that the testator intended to give the document legal intent. When looking at holographic (handwritten) wills, this is sometimes difficult to establish, especially when the “testator” does not dispose of his or her entire estate in the document.
This is one of the reasons people should always get their wills written and validated by a competent estate planning attorney. The fact that a will is typed out and witnessed by a lawyer shows that the testator did indeed intend for the document to have legal intent.
There are certain formalities that must be adhered to when writing a will in Kentucky.
These formalities are:
Unfortunately, failing to adhere to these formalities is strong grounds for contesting a will in Kentucky.
Kentucky law requires a testator to be 18 years or older. Wills written by minors are automatically invalidated and so they are rarely (if ever) contested in a Kentucky court.
Minors who are parents, however, are able to write a will with the limited intent of assigning a guardian for their child or children.
If it can be proved that the testator was not of sound mind at the moment of execution (writing) of the will, then this might be grounds for contesting a will in Kentucky.
This is a difficult point to prove as the standard used by Kentucky courts for determining whether someone had the capacity to write a will is phenomenally low. A history of psychiatric treatment or excessive drug use might not be enough to prove this point.
Even if the point is proved, courts sometimes acknowledge that a testator had a “lucid” period in which the will was written. That would nullify any contest of the will.
If a testator writes a second will, then the first will can be contested on the grounds that it was revoked by the later will.
Later wills do not automatically revoke earlier wills. If the earlier will has not been physically destroyed, then Kentucky courts might consider the later will to be a codicil (addendum) to the earlier will, unless the later will explicitly revokes the earlier will.
If a will clearly contains a mistake, such as failing to state who receives a gift, the will might be reformed or clarified by the court. The mistake must be extremely clear to see. The Kentucky Court of Appeals has drawn a comparison to such mistakes as “pockmarks” on the skin, so not any mistake will do.
For easy reference, we have put together the following summary of the grounds under which a will can be contested in Kentucky:
|Chances of success?
|Testator was under undue stress
|Difficult to prove.
|If forgery is obvious, grounds are strong.
|Strong. Kentucky has strict laws for the format of a will. If these are violated, the contestor has a strong case.
|Testator was a minor
|Rarely make it to court because wills by minors are immediately invalidated and therefore cannot be proved.
|Testator was not of sound mind
|Can be extremely challenging to prove. Kentucky has very low standards for determining whether someone is of “sound mind.”
|Depends on the case. If the old will was not physically destroyed, and the new will does not explicitly cancel the previous will, then the new will could be considered a codicil (addition) to the old one. Hiring an attorney is highly advised in such cases.
|The ambiguity or mistake must be extremely clear. If it is, the contestor generally has a strong case.
The first thing to know is that the district court for the county in which the decedent resided just before their death is the entity responsible for proving the will.
Contesting a will in Kentucky after the district court has proved or rejected it is not an easy process.
To successfully contest a will in Kentucky, the following general steps must be followed:
“Standing” is a legal term that means that the party in question has the right to file a suit in court.
In the matter of a will, the party would need to show that they had been harmed in some way by the proving of the will.
A person can also challenge a will that was rejected. By proving that they were harmed under the law by the rejection of the will, the challenger would have standing under Kentucky Law, and would therefore be allowed to file suit.
Once the district court has issued its decision regarding the will’s validity, you must file an official complaint at the circuit court level regarding the will.
Contesters of a will have two years to file the complaint but if it is filed within one year, then the assets bequeathed in the will are frozen for distribution.
The county clerk—the elected official responsible for maintaining public records—must be informed of the legal action. This notice must include certain technical details such as the date of the court filing and the case number.
This step is best done by an attorney.
Anyone who might be negatively impacted by modification or nullification of the will must be officially served regarding the challenge. The same applies to any interested parties who will be affected by the proceedings.
The process of discovery follows next. This is the formal exchange of information between the parties involved and forms a part of every court case to avoid an “ambush” on the date of the trial. Depositions (sworn evidence) are taken, and sometimes interrogatories (written questions) are submitted to interested parties.
Following the discovery process, a trial date is set. Sometimes, parties might move for an earlier trial date to speed matters along.
If a will is successfully challenged, one of several things happen depending on the circumstances:
The best thing to do in the case of contesting a will in Kentucky is to immediately hire a competent attorney who can help you navigate the situation skillfully. Trying to navigate a will contest without legal counsel will greatly reduce your chances of winning.
To avoid contests of wills in the first place, it is imperative that you hire an attorney who knows how to word a will properly so that no question of its validity and intent can be entered into after the testator’s death.
We work closely with our clients and offer vigorous representation both in and out of the courtroom. If you would like to learn more about our services, please reach out to our office today.
You can contact our lawyers in Louisville at 502-806-8711 or contact us online. Initial consultations are always free.