It is usually very arduous to challenge a will. Wills are viewed by the court as the voice of the individual that created the will. This individual is referred to as the “testator” when still living and as the “decedent” after they pass away. Since the testator cannot convey or make clear their wishes once they pass away, courts closely follow the text in the will.
Prior to being carried out, wills are often examined in court to guarantee they are true and genuine declarations of the testators’ objective. These courts are called probate courts. Just about all wills go through the probate process without problems. Nevertheless, there are several legal reasons a will might be nullified.
Two Ways of Challenging a Will
Two potential successful challenges are that the testator:
- Was without capacity
- Was coerced to create the will a certain way
Successful challenges can nullify a will partially or entirely. When voided entirely, courts are going act as if the will was never created. The estate is then allocated in accordance with state intestacy laws. From time to time, terms from a previous will can also be refreshed for filling gaps in.
Who can challenge a will? Essentially, anyone with an interest in the estate has legal standing to challenge the will — from disgruntled relatives to dissatisfied creditors. This post outlines some common reasons someone might challenge the authenticity of a will in more detail.
Without Testamentary Capacity
“Testamentary capacity” is wordy legal terminology describing the state mentally to make a will. Adults are assumed to have this capability. Challenging this assumption typically involves arguing that the adult was without a “sound mind” at the time the will got signed. This might be shown through evidence of dementia, lunacy, inebriation, and other types of incapacitations.
In other words, testators must have the capability to fully and clearly understand the impact of their will. Typically, the testator needs to understand:
- Their estates scope and worth
- Who their heirs (people that are going to inherit on the basis of the descent from the testator) and beneficiaries (people that are otherwise chosen by the testator for inheriting through a will) are
- Who they’re conversely bound to support
- What they’re in fact giving through the will
Dissimilar from adults, minors are assumed to lack the testamentary capacity for making a will. Nevertheless, exceptions are present for minors that have served in the armed forces and minors that are married.
Deception, Falsification, and Unwarranted Influence
Deception, falsification, and unwarranted influence are all reasons for challenging a will. All 3 are associated to the degree that each is in reference to forms of fraud.
For instance, deception happens when someone deliberately misrepresents vital information to the testator to secure some type of benefit through the will. On the other hand, falsification happens when an individual other than the testator creates fake documentation or signature.
Of the 3 fraudulent practices listed above, “unwarranted influence” is the most unrestricted and adaptable, making it a favorable path for will challenges. The term simply refers to the exploitation of the testator’s freewill to make independent decisions concerning how to distribute their estate.
Unwarranted influence usually involves an individual intimidating a powerless testator to include them (or a person close to them) in their will. For instance, an elderly person that depends heavily on others for support in their daily lives or a spouse struggling with mental illness may be powerless to this type of intimidation or manipulation. Making an argument that a will is not valid due to unwarranted influence usually goes together with the argument that the testator did not have the mental ability to create the will.
New Wills Replacing Previous Wills
New wills are usually understood to replace previous wills. Nevertheless, negligent drafting usually leads to confusion. To bypass this, new wills should make it obviously clear in their text that they are intended to take the place of any prior wills. Failing to do so can create a reason for a disagreement over which document needs to be enforced.
Testators should make sure to date and sign their wills plainly. Pages are sometimes lost (or strangely disappear). For that reason, number the pages in your document! It is not unusual to have at least a date and initial on each of your pages.
Currently, cybersecurity is crucial, including when creating your will. On one side, a properly scanned digital copy of your will can be tremendously helpful in resolving issues in the future. On the other side, digital copies can also be easy to manipulate. Be sure to keep any digital copies of your will (and other estate planning documentation) in a secure location and far away from prying eyes and hands.
Courts have an inclination to impose the more recent signed and dated will accessible. They are going presume that a new will is meant to replace any previous ones. To bypass confusion, you might want to destroy any old wills you are intending to revoke (originals and copies). At end of the day, requirements for nullification or updating a will differ by state. So, make sure to verify your state’s laws.
Engrossed or Incompetent Witnesses
A will is required to be signed and dated by the testator in front of at least two witnesses that do not stand to inherit under it. Failing to adhere to these requirements may be a reason for a challenge. The presence of your witnesses at the will-signing service helps guarantee that the testator was mentally sound, was not coerced, and that their signature is genuine.
Consequently, individuals named as beneficiaries and heirs in the will are typically not allowed to serve as witnesses. These individuals have an innate interest in the will, in which jeopardizes their impartiality and dependability. Frequently, a listed beneficiary or heir that serves as a witness is prohibited from claiming their inheritance.
Distinctly, around half of the states allow hand-written, unwitnessed wills. These are referred to as “holographic” wills and are the simplest to challenge. From the testator’s perspective, they need to be avoided. The reason is because the absence of witnesses and the extremely informal drafting process means these types of wills can rapidly raise suspicions of deception or forgery.
Where permitted, holographic wills are required be handwritten entirely by the testator. Along with a signature, many states also necessitate a date. To impose the authenticity of these wills, the court is required be assured that the handwriting belongs to the testator, that they were mentally sound when writing, and that the will is a true voice of the testator’s justifications.
Failing to Include All Necessary Provisions
Every state has their own laws defining minimum requirements for creating a valid will. Many intersect but failing to follow the requirements and their differences might also create grounds for a challenge. At its most simple, a will needs to:
- Recognize the testator
- Voice their clear intent to create a will
- Undoubtedly identify what is being left and to who
- Name a personal representative (in some areas they are referred to as an “executor”) to implement the provisions of the will
Should You Challenge a Will? An Estate Planning Attorney Can Assist You in Deciding
A last will and testament are one of the most crucial documents you create in your life. Whether you leave your material possessions to loved ones or your favorite non-profit, wills contain both symbolic and realistic importance.
Regrettably, wills are not always created in a way that meets legal requirements. Even more regrettably, sometimes they are the result of outright exploitation and deceit.
If you think that a will affecting your life was improperly implemented or has been improperly adhered to, you might want to pursue professional legal advice from an estate planning attorney near you.
Staff, F. L. (2022, May 9). Reasons to challenge a will. Findlaw. Retrieved November 23, 2022, from https://www.findlaw.com/estate/wills/reasons-to-challenge-a-will.html
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