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.
The ability of the testator to create a will
One of the most common issues that can touch on the validity of a will is whether the will’s creator, or testator, had the legal ability to create the will in the first place. Several circumstances may preclude an individual from legally creating a will. A will may prove invalid if:
- The testator was not old enough to legally create the will, typically at least 18 years of age.
- The testator lacked “testamentary capacity,” meaning he or she did not possess the mental capacity to create the will.
- The testator did not create the document voluntarily, or did so under duress.
- The testator did not have clear intent toward creating a will.
The execution of the document
Even if the testator was legally capable of creating a valid will, if the will was not properly executed, it might be invalid. In some instances, this means that the will is not signed and dated by the testator in the presence of two witnesses. For the purposes of the law, they must be “disinterested parties,” meaning two individuals who meet the legal requirements to serve as witnesses (legal age, sound mind, etc.), and also do not stand to benefit from the provisions of the will itself.
Similarly, if the will contains terms or provisions that do not align with the law, then the will may not withstand scrutiny.
Address your concerns directly
When there appear to be questions about a will’s validity, depending on your relationship to the will in question, you may need to do some detailed research about the laws that apply in your circumstances and the legal options you have to protect your position. Be sure to consider all your options before you move forward, keeping in mind that it can be risky to wait too long to respond to a will challenge or make a challenge of your own.
