We can look at contesting a will from two perspectives: contesting someone else’s will and having your own will contested.
What are some common reasons to contest a will?
1 A very common reason is “lack of testamentary capacity.” This happens when the testator (the person who made the will) did not have the mental capacity to understand the implications of creating the will. Often, the stuff of soap operas, when an individual suffering from advanced dementia or under the influence of heavy painkillers creates a will (new or replacement.) To be valid, the testator must be capable of understanding the act, the extent of their estate, and the claims of those who might expect to benefit from the will. While never an “open and shut case,” it would seem if you knew the testator did not have the mental capacity at the time the will was created, you might want to explore your options with an experienced attorney.
2 Another reason to consider contesting a will is if there is reason to believe the will was created under fraudulent circumstances or if it includes forged signatures or content. An example, again “as seen on TV,” is to trick the testator into signing a document without understanding it was a will or even forging the testator’s signature. (I know a woman whose grandmother was tricked into giving away all rights to her second husband’s estate. He told her it was an insurance document. It’s not quite the same thing, but it happens in real life.)
3 Undue influence can be another reason and can be manifested in a variety of ways. The goal of the influencer is usually to manipulate the will’s contents to their benefit. The influencer might have exerted pressure, coerced, or otherwise overpowered the testator’s free will, leading to a testament that does not reflect the testator’s true intentions. Sadly, one sees this kind of situation with elderly individuals.
4 Last but not least is improper execution. This may be due to several reasons. Each jurisdiction has specific legal requirements for the proper execution of a will. This typically includes the need for witnesses, the testator’s signature, and other formalities. The will can be challenged and potentially deemed invalid if these requirements are not met. So this is not like the others, where there was harmful intent, it could just be the result of a DIY will or working with an inexperienced attorney.
The above four reasons can be considered from the viewpoint of contesting someone else’s will. But also contesting your will. While you won’t be around to witness any problems related to your will, you don’t want it to be viewed as “contestable.” That can have devastating consequences for your heirs. One way to avoid that for your loved ones is to work with an experienced estate planning attorney who will help ensure everything is legally acceptable and free of ambiguities and mistakes. A second major way to avoid a challenge to your will is to not wait until the last minute to create it. No one wants to think about dying, but a hurriedly composed will on your deathbed when you may be under the influence of strong painkillers might be just the opportunity for someone to challenge your will. No one wants their loved ones to go through that. Work with an experienced estate planning attorney to create your will in advance of the need. It’s really that simple. If you’re ready now, call me at 513-399-7526 or schedule a consultation through my website at www.davidlefton.com