Can A Will In Probate Be Opposed Or Contested In Oklahoma?
In Oklahoma, there are several grounds upon which a will in probate can be opposed or contested. For example, if a will is not properly executed according to the law, that would be grounds for it to be contested. If the testator failed to sign the will, it would fall under the category of incorrectly executed. Therefore, the will would be excluded from probate.
Moreover, wills are sometimes contested because the testator did not have legal capacity at the time he or she signed the will. Legal capacity is the testator’s general knowledge of family and friends and what he or she owns. Equally important, legal capacity applies to the testator’s understanding of the testamentary act. It is also possible to contest a will on the grounds of undue influence. In the event of undue influence, an individual would be asserting that someone other than the testator was the one who really made the decisions about the inheritance and what they would receive. Undue influence can be difficult to prove, but it does sometimes succeed.
What Happens When A Will Is Contested?
If someone contests a will, or objects to the admission of a will into probate, they will have to file a sworn objection. The sworn objection must state the reasons for their challenge. Certain time limits also apply when objecting to a will. For instance, after a will has been admitted into probate for at least 90 days, it is very difficult, almost impossible, to maintain a successful objection. However, once the objection is correctly filed, the judge will move the matter towards a trial. A trial on the objection of a will is very much like any other civil trial. For example, witnesses will describe to the judge what happened. They will also be asked why the will should or should not be admitted. Documents may be admitted into evidence, and experts may be called to identify signatures and the like.
The witnesses to the execution of the will are likely going to be required to appear at the trial and describe what happened at the time the will was signed. At the end of the trial, the judge will determine whether the will should be admitted. Afterward, the judge will enter an order to that effect. The party that loses the will contest trial will have the right to appeal to the Supreme Court of Oklahoma.
What Are Possible Testamentary Violations That Will Not Be Upheld In My Will?
There are a couple of possible testamentary violations that may not be upheld in a will. The first is a result of the legal doctrine known as the rule against perpetuities. The rule indicates that nothing lasts forever. It is possible for a testator to hold certain assets in a trust for loved ones and friends. It is also possible to hold assets in a trust for a church or charity of choice. However, the title must be eventually be conveyed to some person or corporation and the assets delivered. The exact application of the rule against perpetuities is convoluted. It has taken up many pages of legal textbooks over the decades. Suffice it to say, you can hold things in a trust for quite a number of years, but not forever.
The next testamentary provision that might run afoul of the law is a restraint on marriage. For example, if my will states, “So long as my daughter does not get married, I give her Blackacre,” – (Blackacre in this context is a generic term for a piece of real estate) – the court may very see this as an attempt to dissuade my daughter from marriage. Dissuading my daughter from marriage could reasonably be seen as a violation on the public policy in favor of families and marriage. Therefore, that provision in the will could fail.
Fortunately, we will inquire about why the testator is making such a plan. If they mean to express something different, they can often restate their wishes in a way that their will would be upheld. For instance, my will could say, “I desire to support my single daughter until such time that she finds and marries a suitable spouse. I desire to give her this support by allowing her to have the use of Blackacre until she identifies and marries that spouse.” That is a provision that is most likely going to be upheld by the court. It often matters not only what you say, but how you say it.
For more information on Probate Of Will In Oklahoma, a Free Initial Consultation is your next best step. Get the information and legal answers you are seeking by calling (405) 754-4166 today.
Call For Our Free Probate Book Or To Reserve
Your Seat At Our Free Estate Planning Workshop