When to challenge a will

| May 13, 2020 | Probate Litigation

Probate litigation has opened many doors for those who are looking to challenge wills. There are plenty of instances when someone would rely on this but usually the court choose to pass the wills since they consider it to be the testator’s voice expressing his or her final wishes. Courts rarely ever choose not to pass the will unless some grounds are raised during the probate litigation process.

Testamentary capacity

It is required for every testator to have testamentary capacity when he or she devised their will. Testamentary capacity requires that the testator be at least 18 years old and that he or she had the mental capacity to write the will by themselves. If any of these elements are not met, then a will can be challenged in court.

Excluded from the will

This is usually a hard case to win considering that if the testator would have wanted to give some of his property to the excluded person, then he or she would have appeared in the will. However, if the excluded party believes that he or she has been left out due to duress or because someone took advantage of the testator’s mental state, then these could be grounds for an investigation that can lead to the reason why the person was excluded.

Fraud and undue influence

Sometimes someone has intentionally manipulated the testator’s will by tampering with it or simply by influencing the testator during the writing process. If this can be proven, then the court might dismiss the will altogether.

Another will

It has happened that the testator has written two wills. When something like this happens, then the latest will shall trump the former one since it is considered that the latest one holds the executor’s final wishes.

 

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