The basics of contesting a will

March 20, 2013

The basics of contesting a will

Article provided by Susana Lannik
Visit us at http://www.lanniklaw.com/

In a perfect world, when a loved one passes all assets are distributed fairly and in accordance with that person's wishes. Unfortunately, there are times when loved ones may have been pressured or tricked into changing their will to distribute their assets in a manner that is not consistent with their wishes. In these cases, it may be necessary to challenge, or contest, the will.

Estate planning is a complex and evolving field of law. Knowing some of the basics can help you decide if the will in question should be challenged.

Contesting a will

There are a variety of ways to successfully contest a will. Some of the more common methods include establishing the presence of one of the following:
-Undue influence
-Fraud
-Lack of capacity
-Improper execution

Undue influence essentially means that the person was pressured to change his or her will. To meet this element, the amount of pressure must be extreme and put the person who signs the will under a severe level of distress. Nagging or threats are not enough to satisfy this element, however, undue influence may be satisfied if, for example, it can be established that an individual threatened to withhold care unless the new will was signed.

If a person is coerced to sign a will by fraudulent methods, it is invalid. Fraud is established if an individual was tricked into changing the will. One example could involve making up a new will and telling the individual that the paperwork is a different legal document that needs to be signed. If the individual signs the document under this belief, the will would be invalid.

In addition, if the individual is not mentally competent when signing the will, it is not valid. This element is also referred to as a lack of capacity. It can be established if the person suffered from dementia, Alzheimer's or any other ailments that may impact an individual's mental capacity.

Requirements for a valid will

In addition to establishing that a will should be thrown out because it was completed using the unjust methods listed above; the validity of the document itself can be challenged.

The requirements for a valid will are complex, but the basics include establishing that the person signing the will had a sound mind at the time of the signing. This means the person should understand what assets he or she has, who is inheriting those assets and the legal impact of signing the will. Often, the court requires medical evidence to support this argument.

In addition, for a will to be valid, it must be signed while two witnesses are watching. Those witnesses should also sign the document. Without this step, the will is often viewed as invalid.

Contesting a will is difficult. If you believe a will was completed using undue influence, fraud or any other unjust method it is wise to seek the counsel of an experienced estate planning lawyer to discuss your unique situation and better ensure your legal rights and remedies are protected.