A will is a legal document that coordinates the distribution of your assets after death. Unfortunately, there are circumstances when disputes occur among surviving family members that can lead to a will contest. Say, for example, your grandmother had indicated that she wanted to leave all of her assets to her children and grandchildren. However, once she passes, you discover that her will directed all of her assets to go to her neighbor who was often over to help with household tasks. Is there anything you can do? If you believe a loved one’s will is not valid, you may be able to contest it. Here are some factors that are often relied upon in contesting a will:
- Improper Execution
A will may be invalid if it was not executed properly. Each state is different, but in Minnesota, the will must be in writing; the will must be signed by the testator (person making the will); the will must be witnessed and signed by two witnesses; the will must be notarized; and the testator must have the intent for the document to operate as a will. If a will is not executed properly, it could be contested and deemed invalid.
- Lack of Testamentary Capacity
The testator must have the mental capacity and be of sound mind at the time the will is executed, modified, or revoked. This means that the testator knows exactly what property he or she owns and understands the effects of making a will. Some examples where a testator may lack testamentary capacity include someone suffering from an insane delusion, dementia, Alzheimer’s disease, or a mental disorder affecting the ability to understand one’s actions. The party challenging the will must prove that the mental disorder was present when the testator was making the will.
This does not mean that an individual who has been diagnosed with dementia, Alzheimer’s, or another condition that effects their cognition cannot sign a will. However, if these circumstances are present, it is important that the proper measures are taken to ensure the testator has legal capacity, and that it is documented to avoid a will contest.
- Undue Influence
Undue influence is present when a testator is coerced or controlled by another person, and are unable to create their will according to their wishes. A person who exercises undue influence will often urge a change in the will’s language to strongly favor him or herself, participate heavily in the drafting of the will, and could urge that the will be changed as quickly as possible. In the example mentioned above about the grandmother leaving everything to her neighbor, the grandmother’s kin could have a valid argument supporting undue influence.
Fraud occurs when a loved one is induced into signing his or her own will without realizing it was a will. Fraud can also occur when someone forges a signature of a portion of the will.
In order to contest a will, a party must have a legitimate interest in the estate, such as heirs, beneficiaries, or others who stand to inherit. If you are worried that someone may contest your will, it is important to let your attorney know so that extra steps can be taken to protect the validity of your will and the wishes contained within it. Contesting a will can be difficult, and Schromen Law, LLC can answer any questions you have.
The material contained herein is for informational purposes only, and is not intended to create or constitute an attorney-client relationship between Schromen Law, LLC and the reader. The information contained herein is not offered as legal advice and should not be construed as legal advice.