When creating an estate plan, you need to consider the execution of these documents. This means considering the pitfalls and potential legal problems the administration of your estate could present.
Even if you include language regarding your beneficiaries contesting your will, this does not always mean your will is protected against any challenges. In fact, there may be legal grounds to challenge a will if it is not properly executed.
Contesting a will
In the eyes of the court, a will is perceived as the voice of the individual who wrote it. As such, it can be difficult, although not impossible, to contest a will. Because the individual is no longer alive, they cannot express or clarify their wishes. Thus, it is common practice for the court to closely adhere to the text of the will.
Nonetheless, a will can be contested if there is a question of validity.
Generally, there are three bases on which a will can be contested. The first is alleging that the testator, which is the person who wrote the will, lacked capacity. The second basis is alleging that the testator was manipulated to write the will in a certain way. The final basis is alleging that the testator did not follow the necessary procedures or state laws when executing their will.
Who, why and how?
To challenge a will, a person must have a stake in the estate. This means that any interested party, from a family member to a creditor, may contest a will. When moving forward with a will contest, they need to prove their basis. If they believe the testator lacked capacity, they need to illustrate they did not have sound mind. Evidence of dementia, insanity, intoxication or any other form of incapacity could be used.
If the will contest is based on fraud, forgery and undue influence, then evidence of intentional misrepresentation, a fake document or signature or the manipulation of the testator’s free will must be provided. Finally, if one seeks to contest a will based on failing to include all required provisions, evidence that it failed to identify the testator, express the clear intent to create a will, clearly identifies what is being distributed and to whom and the appointment of a personal representative that will carry out the terms of the will.
A will contest can be a complicated matter. Thus, it is important to understand this process, your rights and what steps are required. A legal professional can help answer any questions or concerns you might have.
