The process for challenging a will

Posted by iLawyer on Jan 10th, 2020 Firm News, Probate

A will is meant to reflect the final wishes of the deceased, and to give legal power to those wishes. Since the deceased is no longer around to testify, a court takes the will as the voice of the deceased. Unless a court finds that a will has not satisfied all its formal requirements, it will almost certainly declare the will valid and move it through probate.

With all this in mind it can be very hard to convince a court that it should overrule the stated wishes of the deceased and declare a will invalid. However, sometimes it is necessary to challenge a will in a legal action known as a will contest.

Family members of other interested parties may want to challenge a will just because they didn’t get the inheritance they wanted, but mere disagreement or disappointment are not strong enough reasons to convince a court. Instead, the challenger must show that another will has a stronger claim to being valid, or that the will in question does not meet all its requirements.

In many will contests, the requirements at issue are testamentary capacity and testamentary intent. Essentially, this means that the person was of sound mind when they created the will, and that they understood what they were doing.

Legally, the person who created the will is known as the testator. The testator must understand: (1) the extent and value of the property at issue; (2) who they are expected to name as heirs and beneficiaries; (3) what they are doing when they name their heirs and beneficiaries in a will; (4) how the will can facilitate the distribution of property.

In a will contest, the challenger may argue that the testator did not understand these things due to dementia or other incapacity.

Another way people contest a will is by arguing that the testator created it due to fraud or undue influence. If the challenger can convince the court that the testator was pressured, manipulated or otherwise tricked into creating a will, then the court may find that the testator lacked the required capacity and intent.

Sadly, there are cases of elder abuse where unscrupulous people manipulate the elderly in order to get their money when they pass away. Often, family members don’t find out what happened until after their loved one died, and they must go to court to challenge the will.

These cases are legally difficult and can be emotionally devastating. However, with the help of a skilled lawyer, they can be important ways to right a wrong.