Reasons That You May Want to Challenge a Will
Nearly 99% of wills that are made in the United States are not contested. Even so, there are many reasons to challenge a will. A will is the last word of the testator, so the courts give it an inordinate amount of weight.
Testamentary Capacity
If there is any reason that you would gain from contesting a will, you have the right to do so. The most successful people to challenge a will have been the spouses of the deceased.
In order to create a will, the testator must have the mental capacity to do so. This means the following:
•The testator must be aware of the nature or extent of the property.
•They must be aware of the natural objects of the property.
•They must know the disposition that he or she is making with the will.
•They must be able to put all of these elements together in order to create a coherent plan.
In most states, only adults 18 years of age and older can have the testamentary capacity to create a will. Some jurisdictions allow minors in the military to form a will; they can also write a will if they are married.
So, what are the reasons to challenge a will?
The Testator Did Not Have Testamentary Capacity
In most cases, people argue that the testator did not have testamentary capacity. They usually suggest that the person was under the influence of a substance, had dementia, was insane, or was senile. To use these arguments, you would need to prove that the testator was unable to understand what they were doing at the time of the will’s creation.
The Testator Was Under the Undue Influence of Another Person
If the testator was vulnerable to another person and this individual convinced them to leave the majority of their property to them, this would qualify as undue influence. “Undue influence” means that the testator would not have been free to resist the actions of the manipulator.
The Testator Had Another Will at the Time of Death
The executor may be carrying out the wishes of the testator’s older will. If there is a will dated after a previous will, the court will honor the wishes of the newer will in most cases.
There Were Insufficient Witnesses to the Signing of the Will
In the case of a “holographic” will, the testator writes and signs the will in their own handwriting. This will may or may not have witnesses, and if it does not have a witness, it is extremely easy to challenge it. A typed will must contain the testator’s signature and the date, and two adults are required to witness the signing of the document for it to be accepted.
Someone Forced the Testator to Create the Will
In this case, the will was procured by fraud. This means that someone tricked your loved one into signing the will. For example, the person may have presented your loved one with a document for them to sign, but didn’t tell your loved one that they were signing a will. In this case, the will was procured by fraud. The witnesses are very important in this case because the testator is no longer able to speak for themself. The witnesses will need to testify to what they believed the testator thought they were signing.
An estate planning litigation lawyer is involved in the entire process of challenging a will. They are there from the beginning during the preparation of evidence to gathering all of the filings and presenting the evidence in court during the hearings and other proceedings. Most importantly, you need an estate planning litigation lawyer with years of experience working in this area of the law.
If you believe that you have grounds to contest a will and need an estate planning litigation lawyer, contact us at The Knee Law Firm today by calling (201) 996-1200. We are located in Hackensack, New Jersey.