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Maumee Probate Litigation Blog

A lack of capacity can invalidate a will or contract

You loved your parents very much, and when they passed away, you knew you'd be left with many of the assets they owned. What happened next was nothing you could have ever expected. Instead of receiving information about assets that would be distributed to you, you found that many of the assets were being given to the family's newest friend.

That friend was not someone you were comfortable with, and he got a little too close to your parents for comfort. You felt like there was something off with him, and now you think that he manipulated your parents into changing the will and estate plan. Due to undue influence and the fact that your parents struggled with dementia and the inability to make sound decisions, you want to challenge the changes to the estate. Can you?

How can you invalidate a will?

There are a number of circumstances under which you might want to challenge a will. While the majority of wills go through probate with no issues at all, there are times when family members and beneficiaries may have concerns about the decedent's will.

Since the will is designed to speak for a person who is no longer living, it's vital that it's upheld as it was intended. However, if a person was manipulated, threatened or otherwise forced to write or alter their will, there could be a reason to challenge it.

3 red flags that undue influence changed a will

Wills are there to protect a person's assets as well as to provide for heirs and beneficiaries. For many, the will gives them a chance to give orders and requests for the time following death.

Unfortunately, this legal document could be influenced by someone outside the family or intended heirs, causing trouble upon the elder's death. Here are three red flags to look for.

Do you understand testamentary capacity?

Challenging a will is easier said than done, as you need to have a reason to move forward with the process. In other words, people can't contest a will because they feel like they didn't receive what they deserve.

There are many grounds for contesting a will, with testamentary capacity often at the top of the list.

What might make a will challengeable?

When a person dies with a will, it generally controls the distribution of their estate. However, it only does this if it is valid. There are a variety of things that could potentially invalidate a will or some of its provisions. When these factors are present, they can be grounds for challenging a will. Will challenges, and how they are resolved, can have major impacts for families and other beneficiaries.

Contesting estate administration over breach of fiduciary duty

When a loved one passes away, the last thing you want to do is mire the estate in court without good reason. In fact, many people may overlook inappropriate or questionable behavior by an executor or trustee in good faith, assuming that person is simply doing the best he or she can for the situation.

Sometimes, however, serious mistakes, oversights or attempts to profit from the estate could necessitate bringing a challenge. In many respects, the estate plan, trust or last will is the final legacy of your loved one. He or she went through the effort to create the plan in the belief that those wishes would be accurately and carefully executed. Incompetence or greed should not diminish the legacy of someone you love.

3 reasons to remove a trustee from a trust

The role of trustee comes with some very serious responsibilities. For example, if you are the beneficiary of a trust, you will expect the trustee to make financial decisions for the trust that are in the best interests of you and any other beneficiaries. Because of this high level of trust that beneficiaries must have in trustees, the law holds trustees to a very high standard.

In general, there are several people that have the power to remove a trustee who is not adequately performing his or her duties. This usually includes the beneficiaries, the court and any other individuals that the trust documents grant this power to. There are several reasons why you should remove a trustee.

Not just anyone can challenge a will

Challenging a will is necessary when you have a valid reason to believe that the will isn't correct. A previous blog post discussed some of the reasons why a person might challenge a will. On top of having a valid reason, you must have a status that allows you to challenge.

There are a few different points that you must consider when you are determining if you can challenge a will.

The probate process without a will

While most people understand the importance of creating an estate plan, not everyone goes through this process. For this reason, it's possible that people could pass on before they create wills.

When a person passes on without a will (intestate), property is distributed based on the state's intestate succession laws.

Determining lack of capacity when disputing a will

When there is a dispute over a person's will, one of the questions may be if he or she had the capacity to make decisions or changes to that document. It's not always easy to challenge a will, but if a person can prove that a lack of capacity played a role in a person's decision making before death, then he or she could have a solid case in court.

When determining if a loved one lacked capacity, it's vital to look into medical records. Typically, functional assessments look into a patient's needs along with his or her physical and mental health. As people age, it's common to see them struggle with Alzheimer's disease or other forms of dementia.

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