4 Common Will Contests
Nov. 2, 2018
A will contest or will challenge questions whether the will is valid or whether specific terms are really what the testator intended. In some will contests, the entire will could be determined invalid. In other situations, only portions of the will may be disregarded.
While there can be any number of validity challenges, will contest typically center around just a few common problems.
1. Lack of Testamentary Capacity
To create a will, you must be of sound mind. That means that the testator must have the mental capacity to understand what he or she is doing. The same requirement exists if the will is being modified or revoked as well.
Being of “sound mind” requires that the testator know what property he or she owns and understands the effects of creating and finalizing the will. This standard is relatively low. However, it can be a real challenge for someone who is suffering from the beginning stages of dementia or has another health issue.
2. Undue Influence
When you create a will, you are supposed to develop it with no outside influences or pressure. When someone tricks you into including a specific provision, establishing or revoking a will, or altering your will, that can be considered undue influence. These situations are especially prevalent when the testator is vulnerable to outside pressure, such as when they have a health condition.
Having an attorney help prepare the will can help address potential issues with undue influence. For example, the testator should meet with his or her attorney alone so that they can discuss what the testator’s wishes are, not what children or spouses may be interested in.
3. Improper Execution
Creating a will requires that you follow precise protocols. For example, you must have a certain number of witnesses, and the document may need to be notarized as well. The witnesses often cannot have an interest in the will, too. Failing to follow these particular requirements can invalid the will entirely.
Challenges based on improper execution will often completely invalidate the will in most circumstances. That could mean that the deceased will be forced to use state laws regarding distributing property as if he or she did not have a will at all.
4. Duress or Coercion
Duress or coercion is similar to undue influence, but it is much more direct. Undue influence is more focused on improper persuasion. Duress or coercion, however, is the result of a threat or performance of actual violence.
Bringing a Will Contest
Any “interested party” can bring a will contest challenge. Generally, anyone who is damaged by alleged action can assert a will contest. This may include beneficiaries that will not get as much as they anticipated from the will, people left out the will entirely, or those who would have gotten something under state law but did not get anything under the will.
Will contest cases can be challenging because the principal witness has passed on. Instead, you may need to present other testimony and circumstantial evidence to prove your case. Having an experienced litigation attorney can be a valuable asset in these situations.