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Biddle Law Estate Planning Blog

Tuesday, December 26, 2017

Reasons to Challenge a Will

A will describes who should get what regarding both assets and liabilities. However, sometimes the will may not seem fair or just for various reasons. If you read a family member’s will and think, “Why did Dad do that?” or “I’m shocked that Mom did that,” you may have grounds to contest a will.

There are a variety of reasons that contesting a will may be appropriate. Underlying each rationale, however, is the notion that something seems slightly off on how the decedent left things. Below are a few examples of situations where you may be legally entitled to challenge a will—and perhaps you should!

The Will is Forged or Fraudulent

The testator must have not only created the will himself or herself, but he or she must have also signed it as well. There are situations where family members cannot find the will, so they create a “fake” will or add a signature to an unsigned copy. If the will is forged or otherwise fraudulent, it can be set aside completely.

The Will Was Developed Based on Undue Influence

When someone has a great deal of control or influence over the testator, that can lead to problems when it comes to the validity of a will. Perhaps someone who is caring for your loved one convinced your loved one to add him or her to their will. Their role as a caretaker can lead to undue influence, which may invalidate the will entirely.

This type of situation often occurs when an older adult has dementia or does not fully appreciate what is happening when he or she changes their will. Someone has essentially manipulated the testator to alter their will or create it in such a way that the testator would not have otherwise done.

The Testator Lacked Capacity

You must have “capacity” to create a valid will. That essentially means that you know and understand what you are doing when you create the will. Generally, having testamentary capacity means that you:

  • Know and understand the value and extent of your property or assets;
  • Fully appreciate who are expected to provide for and who the beneficiaries of your will may be;
  • What a specific term set out in the will means and how that will affect loves ones; and
  • How all of the above elements relate together.

Challenging a will based on capacity requires a showing that the testator did not understand the consequences of the terms of the will when it was created. Mental capacity is usually the deciding factor. However, minors are generally not considered to have capacity to produce a will, even if they understand and appreciate the above factors.

The Will Does Not Meet Legal Requirements

Every will must meet certain legal requirements to be valid. For example, in California, a will must have two witnesses when it is signed. The witnesses must be disinterested, and they must also sign the will. Failure to meet this requirement could invalidate the will.

Other provisions of the will may be invalid because they are contrary to public policy or they are outright illegal as well.

Challenging a will can be a complicated process, but it may be worth asserting if the will is not what you were expecting. You can talk through your options by calling Biddle Law and setting up an appointment today.


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