Along with heightened emotions, the death of a loved one often causes the surviving family members and loved ones to have questions about the legal process that follows. If the decedent left behind a Last Will and Testament, one of those questions may relate to the authenticity of that document and how to go about challenging the validity of the Will. If you are contemplating a will contest in North Dakota, it is important to have at least a basic understanding of the legal process involved. With that in mind, a Grand Forks attorney at Thompson Law discusses what you need to know about a North Dakota Will contest.
What Does It Mean to Contest a Will?
When someone passes away, their estate must go through the legal process referred to as “probate”. Ultimately, probate serves to distribute estate assets to beneficiaries and/or heirs of the estate. Long before that can happen, however, the decedent’s Last Will and Testament must be authenticated if one was left behind. “Contesting” a Will refers to challenging the authenticity or validity of the Will submitted to probate.
What Is Required for a Will to Be Valid in North Dakota?
State law determines what is required for a Will to be valid as well as what grounds may be used to challenge the authenticity of a Will. For a Will to be valid, North Dakota law requires the Will to be:
- Written
- Signed by either:
- The Testator (the person making the Will) OR
- An individual signing in the testator’s name, as long as the signature happens in the Testator’s conscious presence and at the direction of the Testator AND
- Signed by either:
- At least two individuals, who witnessed the Testator sign the Will, or after the Testator acknowledged to them that the document is the Testator’s Will OR
- A notary public, after the Testator acknowledged to them that the document is the Testator’s Will.
Who Can Contest a North Dakota Last Will and Testament?
A common misconception is that anyone can challenge a Will and that a Will may be challenged for any reason. In truth, only certain people can contest a North Dakota Will and a contestant must have valid legal grounds on which the Will could be declared invalid to initiate a Will contest. In legal terms, you must have “standing” to initiate a Will contest, meaning you have the legal right to participate in litigation. In a North Dakota Will contest, you must be an “interested person,” which typically refers to a beneficiary under the Will submitted for probate, a beneficiary named in a previous or allegedly subsequent Will, a legal heir to the estate (meaning you are entitled to inherit under the North Dakota intestate succession laws), or a creditor of the state.
Is There a Time Limit for Contesting a North Dakota Will?
Not only does the law limit who can contest a Will, but it also limits how long you have to do so. As a general rule, you must initiate a Will contest within three years from the date the Will is admitted to probate; however, there are factors and circumstances that could impact that time frame. This is one of the many reasons you should consult with an experienced probate attorney if you are contemplating a Will contest in North Dakota.
Can a Spouse Contest a Will in North Dakota?
The spouse of a decedent has standing to contest a Will in North Dakota; however, challenging a Will may not be necessary if the concern is centered on inheriting estate assets. Like many states, North Dakota law entitled a spouse to an “elective share” regardless of the terms of the Will. Specifically, “the surviving spouse of a decedent who dies domiciled in this state has a right of election, under the limitations and conditions stated in this chapter, to take an elective share amount equal to fifty percent of the augmented estate.”
What Legal Grounds Can I Use to Contest a North Dakota Will?
While some people share even the most minute details of their estate plan with family members and loved ones, others share absolutely nothing. Even those who do share may change their minds shortly before passing away, leaving survivors perplexed at the terms of the decedent’s Will. Surprises in a Will can lead to strong feelings, including anger, resentment, and abandonment on the part of surviving loved ones. While these feelings are often justified, they cannot serve as legal grounds to contest the Will. To pursue a North Dakota Will contest, you must allege, and ultimately prove, legal grounds that could invalidate the Will, such as:
- Lack of Testamentary capacity
- Duress
- Undue influence
- Fraud
- Improper execution or other technical grounds
- Revocation by a subsequent Will
How Do I Contest a Will in North Dakota?
Fundamentally, a Will contest operates like most other types of civil litigation. To get started, the person challenging the validity of the Will (the “contestant”) files a petition with the appropriate court stating the grounds on which the contestant alleges the Will should be declared invalid. Assuming that the petition meets the legal standards required to move forward, the court will proceed just as it would in other types of civil litigation, typically ordering both sides to conduct “discovery” and attempt to negotiate an out-of-court settlement.
The Executor of the estate, named in the Will submitted for probate, is responsible for defending the Will submitted to probate. If the parties cannot or will not negotiate an out-of-court settlement, the matter will proceed to trial. If the contestant is successful at trial, the Will submitted to probate is invalidated. If another valid Will cannot be located, the estate is distributed using the North Dakota intestate succession laws. If the contestant is unsuccessful at trial, probate proceeds using the terms of the original Will submitted to probate.
Do You Need Help with a North Dakota Will Contest?
Please view our on-demand webinar. If you are contemplating a North Dakota Will contest, contact the Grand Forks probate attorney at Thompson Law by calling 605-362-9100 to schedule an appointment.
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