Challenging a will: Determine if you have good grounds

On Behalf of | Sep 17, 2018 | Probate Litigation

There are several reasons for challenging a will. While the majority will pass through probate with no issues, around 1 percent of all wills will be contested. The problem with contesting a will is that the person who wrote the will is no longer alive. This makes it very hard for the courts to determine what their wishes would have been.

Courts usually stick closely to what the will says, but there are exceptions to every rule. For instance, if you can show that the will was recently changed before death, then there may be a reason to contest the will and good grounds to do so.Usually, successful challengers are spouses. The most successful grounds show that the person who wrote the will lacked testamentary capacity or was unduly influenced.

What happens when you challenge a will?

When you challenge a will, you can challenge a portion of the will or the entire thing. If you are successful, the court will decide if the will should be invalidated and its entirety or just in part.If the will is voided and there is no previous will to fall back on, the court is likely to distribute assets as if no will ever existed.

What are good grounds for challenging a will?

You may be able to successfully challenge a will if you can show a lack of testamentary capacity, undue influence, fraud, forgery or that there is another will that trumps the current will.

Which wills are the easiest to contest?

It is easiest to contest a handwritten will without the appropriate witnesses. The will needs to be signed by the testator with at least two witness signatures from adults. Most states require that the witnesses are not those who will later become heirs to the estate.Some states do allow for handwritten wills while others do not. In states that do, the wills are called holographic wills. They’re the easiest type to contest because the testator writes it in their handwriting and may have no witnesses. The document needs to be dated as well.

A good will matters to your estate, and it’s something to build up from an early age and to update accordingly. If you are a beneficiary of a will and worry that your loved one was unduly influenced or lacked the capacity to make decisions mentioned in the will, you can challenge the will in court.


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