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What is the statute of limitations on contesting a will in…

What is the statute of...
What is the statute of limitations on contesting a will in the following particular circumstances?
A man dies at 84 after having changed his will twice in the previous 20 years. One original will was written in 2001 in which 50% of his estate went to his children. The first change and the second will was written in 2009. It left all the income from the estate to the wife , with the right, if approved by the Trustee to dip into the capital, the residual of which was left to the children. The last will gave the entire estate outright to the wife with nothing to the children.
The wife was a second wife, with no children of her own. The last will was the subject of a challenge on the basis of undue influence. That matter is pending, but the evidence is overwhelming. Moreover, it is now clear that the earlier 2009 will was also written under "undue influence" That has only become evident since investigation proceeded to prove the matter on the 2015 will. The law reasonably allows a matter to be disputed within a certain period of time from th discovery of the matter by he injure party.
Question: In the scenario above, what would the statute of limitations be? Is there any possibility, however remote that it could be extended at the court's discretion if the facts supported such an outcome.
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Answered in 3 minutes by:
9/28/2017
Olivia Kent
Olivia Kent, Attorney
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In general a will contest has to be filed within two years from the date the will is filed into probate. So, the clock starts ticking not when the person dies - but when the will is actually probated, which could be up to four years from the date of death of the person. Before a will is probated, anyone can file a contest at any time - so the clock doesn't actually start ticking until the will is probated. I hope that helps. Please let me know if you have any additional questions and I'll be happy to answer them.

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Customer reply replied 10 months ago
Thanks very much. That is helpful. However, the issue here is a little trickier. The wife is a second wife with no children of her own. Will # 3 is the will that was signed in 2015 a few months prior to the testator's death and was timely contested on the basis of "undue influence". Will # 3 changed will # 2 signed in 2009 and was also obtained by "undue influence". Will # 1, signed in 2001, is the only will that reflected the true intent of the testator. It provided 50% to the wife and 50% to the children. That was the only one that was not written under undue influence.
The issue of "undue influence" is a tort which carries potential treble damages. Thus, if won at maximum potential on the current case alone, would result in the entire estate going to the children. However, absent punitive damages, negating the 2015 will and reverting to the 2009 will gives the children very marginal relief.
However, since it has now become clear that the 2009 will was also obtained as a result of "undue influence" the question arises, "CAN THE CHARGE OF UNDUE INFLUENCE ALSO BE ADDED FOR THE 2009 WILL, ON THE BASIS THAT THE ISSUE ONLY AROSE NOW?"
It sounds like a case of sui generis. Therefore the key seems to be: Is there anything that conclusively excludes that argument to the point where a Motion to Dismiss is certain to prevail?
To wit: Can an amendment to the complaint in the current case indicating that an additional claim is being made that the 2009 will was also obtained by "undue influence" ? The whole on the basis that the statute of limitations does not apply, because no complaint would have been ripe on the 2009 will until the death of the testator and the surfacing of all the undue influence evidence.

You can add an additional claim in your complaint - but if you're arguing that the 2001 will is the only one that is valid it may be a moot point ultimately. But it certainly doesn't hurt to try to add that claim to demonstrate a pattern of undue influence.

Olivia Kent
Olivia Kent, Attorney
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Customer reply replied 10 months ago
Thanks very much - Smart and pretty!!!

Thank you. Happy to help :-)

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