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Estate litigation: Circumstances when you can challenge a will

| Jan 22, 2019 | Uncategorized

A will is legally binding in most cases, so the probate court must adhere to the terms laid out in the document by the creator of the will. But what if circumstances are such that heirs, beneficiaries or other interested parties wish to challenge the validity of the document?

There are situations when such a will contest could be viable and respected in court. Many wills have been overturned after family members or those who were not treated well by the will submitted a challenge in court. The court might invalidate the entire will or just a piece of it.

Here are situations when you might be able to challenge a will like this:

Lack of testamentary capacity: The notion of testamentary capacity is vital for a valid will. The testator (you), needs to be at least 18 years of age and of sufficiently sound mental capacity to understand the meaning and extent of the provisions in the will.

Forgery, fraud or undue influence: The testator must have signed the will. Any forgeries or fraudulent alteration of the will are grounds for invalidation. Also, evidence that someone coerced the testator into signing the document and/or unduly influenced the testator into signing can be grounds for a challenge.

A previous or subsequent will is the valid one: In the case of multiple wills, a challenger might try to show why the current will before the court is not valid and why the court should honor a previous or subsequent one.

Insufficient witnesses: Most states require two witnesses to sign and date the will after witnessing the signing and dating of the will by the testator.

Where the testator lived: Issues might arise regarding the differences of the estate laws in the state where the testator dies, and the state in which he or she drafted the original will. Generally speaking, a will that was lawfully drafted under the laws of another state will be valid in a new state. However, confusion and lack of clarity can arise in these cases requiring a court determination.

Because challenges to wills are not uncommon, you and your family might want to find out whether your current will is valid and lawful. Making the habit of performing an annual review of your estate plan is helpful to stay on top of your wills and other documentation.