Did you know that the validity of a will can be contested? Will contests can be a big headache for all involved and can create serious delays in probate proceedings. Many times, family members who may feel slighted by the contents of a will may bring a contest when the contents of the will come to light. Maybe a person thought he or she was going to inherit more. The point is that emotions after the death of a family member can run high. The fact that financial interests play a part in the contents of a will means that these emotions can be further fueled leading to a will contest. The thing you should know, however, is that wills cannot be contested just because a person does not like what it says. There must be valid grounds for contesting a will.
Common Grounds for Contesting a Will
One of the most basic grounds for contesting the validity of a will is that it was improperly executed. In order to be valid, certain formalities must be observed. These requirements will vary from state to state. Usually, there must be one or two witnesses to the testator (the person establishing his or her will) in order to be valid. Sometimes, a will must be notarized. If a will was improperly executed, a person may contest its validity on those grounds.
Lack of testamentary capacity is another common basis for contesting a will although it is difficult to prove. In order to be able to create a valid will, a person must have testamentary capacity. Usually, this means that the person understands his or her assets and understands the consequences of how he or she wants those assets distributed after passing away. While lack of testamentary capacity is a common reason for contesting a will, it is very difficult to prove because the testator is, of course, no longer around. That means that supporting evidence is somewhat attenuated. Medical records and reports of the testator being treated for certain types of memory disorders or other mental health concerns may suffice. Just because a person may have had dementia at the time of creating a will, however, does not necessarily mean that it will rise to the level of lack of testamentary capacity although it may be indicative of such.
Undue influence is also a commonly asserted basis for contesting a will although it too is difficult to prove. Undue influence occurs when the testator has been so pushed into a corner that the desires of another are substituted for his or her own in creating a will. Mere nagging or threats will not be enough to show undue influence. A court will, however, take into account that older individuals can be more susceptible to undue influence factors due to being physically or mentally vulnerable.
Fraud is another common ground for a will contest. With the assertion of fraud, which is also difficult to prove, it must be shown that the testator believed he or she was signing something other than his or her will. In other words, the procurement of the testator signing off on the will was through fraudulent means. Again, the testator is clearly unavailable to testify as to whether or not he or she knew what was being signed. Oftentimes, the witnesses must be relied upon to testify as to what they thought the testator was signing.
Estate Planning Attorney
Is there a potential will contest on the horizon? Learn more about your options from the knowledgeable team at Jones, Gregg, Creehan & Gerace. Contact us today.