Contesting a will is a complex and extensive process. People who opt to contest for a will typically believe that they were treated dishonorably in the will or were wrongfully left out by the person that signs the will, known as the testator. The person contesting the will must be named in the will or have a strong basis for expecting to be written into the will. To challenge a will you must have a legal reason. There are various grounds on which you can contest a will. The most frequent grounds a person contests a will over are the following: Incapacity, undue influence, fraud and a not valid will.
Incapacity is when the person who signs the will is not in the right testamentary capacity. Disease, mental illness and the lack of understanding what their will entails and who is put in it are reasons to challenge one’s will on grounds of incapacity. A person must be in a proper mind frame to be able to comprehend what his or her signature states in his or her will. A person should be able to grasp how much he or she owns, whom he or she should be granting his or her belongings to and how to divide his or her property.
Undue influence is when the influence of another person whom may be a close friend, caregiver, or family member may compose a new will or pressure the testator to sign a will that benefits the influencer. The testatoris placed under the power of this person and is predisposed by them to make his or her will something that is against his or her actual intent. This could happen due to the vulnerability of the person during the signing of the will or by manipulation of the testator to cut likely members out of the will. Undue influence can include threats to the testator, blackmail, or withholding of medication.
Fraud is a way to obligea person to sign a will that did not say what the individual anticipated it to say. This can happen by the person believing he or she is signing a different document while in fact he or sheis actually signing his or her will. Fraud, in this case, is any part of the person’s will that entails anything that the testator never sought to have in his or her will is stated in the will. Anything written in the will that the testatorwas unaware of or did not wholly understand was being placed in his or her will is considered fraud.
Improperly signing of a will can be a basis of contest a will. For a will to be valid in most states, there must be two witnesses present both above the age of 18. The law varies state to state on what makes the signing of the will valid. If someone contests a will on these grounds the court will call the witnesses in to authenticate their signatures. If the signers are unable to verify the signatures the will is said to be invalid.
Contesting for a will is not an easy process. There must be evidence in order for the court to contest a will. Evidence can be difficult to attain for the legal reason provided by the person contesting for the will. One must dig up medical records, attain witnesses, and obtain any other information that can prove the will faulty. The court decides on the validity of the will and in order to contest for a will most states require the time to not exceed 6 months after the probate began.
A no-contest clause can be added to a testator’s will. This means that if someone contests the will, he or she will ultimately lose the case and be removed from the will completely.
William McCarthy is a practising barrister with expertise in this area of work.