I get a lot of calls from people in Georgia, all over the United States, and sometimes abroad interested in contesting a will. Invariably, the first question they ask is whether they have a case? For an in-depth answer, please review the Will Contests page of this website. You may also find will contest article published at AARP.org helpful, not just because it provides an overview of when a will contest may be appropriate but also because it poses an important question: is the cost of a will contest worthwhile?
There are several factors to consider when determining the value of a will contest?
- Most importantly, the case must have a good chance of success. This usually means a set of facts known from the outset that make it more likely than not that the will is invalid. However, the strength of a will contest must be analyzed from a legal perspective, not a moral or ethical perspective. I get plenty of calls from people who desire to contest a will because they do not like the contents of the will but have no legal basis to overturn the will. I also get a lot of calls from people who claim a will is invalid based on a legal concept but have no way to prove their case. It is best to contact an attorney experienced in estate litigation to discuss the merits of your case.
- Certain will contests are more expensive than others. A will contest based upon improper execution typically is more affordable than a will contest based on incapacity. This is because improper execution involves a very limited set of relevant facts (Did the testator sign the will, and was it witnessed properly?) and typically does not require evidence based on expert opinion. On the other hand, will contests based on incapacity often require a medical expert’s opinion. Also, some will cases must be decided on several minor facts while others may be decided on one or two decisive facts. The former take more effort to prove and, therefore, will typically cost more.
- How much value is in the estate? I find that this factor is not given much importance by clients at the start of case but becomes more important as the cost of the case grows. Many clients desire to contest a will on principle, and that is a respectable position. If a will is allowed to stand, not only will the client not get what was intended for her, but an undeserving person may end up with the whole estate. That is a hard pill to swallow. But it important to consider all of the uses a client can put her money toward besides litigation that may provide greater value, financial or not, to the client. Ultimately, this factor depends somewhat on the strength of the case.
- What factors besides money are at play? As noted above, principle is important, and sometimes the value of ensuring a villain does not benefit from one’s estate is more important than a client’s own financial enrichment. Another aspect to consider is the long-term value of the relationship with the opposing parties and innocent third parties that might be affected. Overturning a will that leaves a gift to someone suspected of unduly influencing the testator may also eliminate a benefit to another person with whom the client has a valuable relationship, which may give rise to resentment.
- What type of fee agreement is available? Most estate litigation attorneys I know bill on an hourly basis. The reason is that will contests and other estate disputes are challenging, and there is not always a party on the other side with the ability to pay an award (i.e., an insurer). A client usually must rely on the property in the estate for a recovery, including the recovery of attorney’s fees. In some cases, where the opposing party has acted in bad faith, the client can recover attorney’s fees from the opposing party, but that is not a guarantee. For cases where the value of the estate is not in dispute (and is relatively large), and where the facts of the case strongly favor the client, a contingency fee arrangement may be appropriate. But a law firm typically can only take on a few of these at a time.
If you believe your rights are being affected by an invalid will, please call me at my Atlanta law office at 404-467-8611 or send me an email so we can determine how strong your case is.
