Say the worst has happened. One of your beloved friends or family members has passed away. You find yourself at the reading of their will and find that things are not quite right. You question if your loved one really wrote the will or if they were of sound mind. After deciding that things are not as they should be, you decide to contest the will.
You have every right to challenge the will. Just know that it is a rare occurrence, with 99% of trusts and wills usually going through. But if you do decide to take action, here is a list of things to keep in mind.
Age
When an individual writes a will, they usually need to be 18 or older. There are some cases where states will allow younger individuals to draw up a directive if they are married, in the military, or emancipated. If individuals do not make these basic requirements, their will can be contested.
Contents of Will
In general, the specific details in the will should be clearly stated. In general, wills usually explicitly state whose will it is, have at least one major provision, and appoint an executor. Some states ask for more specific information.
Mental Capacity
Mental state of a testator is important when it comes to drafting a will. The person making the will should be “of sound mind.” This means that they should have the ability to make decisions for themselves. Other things that states will look for are:
- Individual knew they were creating a will
- Individual knew who they were responsible for, such as partner or child
- Individual clearly knew what they possessed in terms of property and assets and could choose how to distribute them
Fraud or Undue Influence
One of the fastest ways to have a will invalidated is if you can prove that it was forged or the testator was coerced into writing it. If the person writing the will was manipulated or did not have free reign to make the choices of how to divide property, you can have a case to contest the will.
Witnesses
Wills that are typed or printed from a computer must be signed in front of two witnesses. Typically, these witnesses cannot be individuals who are inheritors named in the will. Documents that are completely hand written are valid in some states, but are easier to contest because they do not require witnesses.
Cases Usually Handled in Probate Court
In order to challenge a will, you must file the correct petition in the state probate court. This court has jurisdiction over the deceased’s estate. Each state require different information and deadlines, so make sure you know what your state requires.
Challenging a Will is Risky
Some wills come with no-contest clauses. These are placed in the document to dissuade others from protesting against it. If you do decide to challenge a will, and lose, you might lose what is named to you in the will.
It can be hard to think about properties and assets when you are grieving over the loss of a loved one, but if you do think something is wrong with a will and would like to contest it, call Domina Law Group to find out your legal rights.