If you create a last will and testament to handle your estate and last wishes, you probably assume that document is ironclad and will be immune to any legal challenge. After all, it’s called a last will and testament – meaning it should be the final say in how your assets will be distributed upon your death (among other functions of a will). However, not all testators (the people who create wills) realize there are ways that family members and other interested parties can contest their wills in court. Our Estates & Trusts attorneys explain four of the most common reasons to do so.
Influence over the way in which a will is drafted, and which heirs inherit which assets, is inevitable. Undue influence is entirely different. It refers to someone exerting inappropriate pressure upon the testator to include certain terms in the last will and testament.
Unscrupulous family members, desiring assets that the testator probably would not pass on to them, can wield undue influence. So can strangers who suddenly enter the lives of testators, take an unusual interest in their property, and then try to convince the testator to change the terms of the will to benefit him- or herself.
A key test in determining the presence of undue influence is whether the will was drafted or altered in a way the testator would likely not otherwise have done. Another factor is whether the testator is particularly susceptible to influence, such as being dependent on a caregiver who is trying to wield undue influence, or suffering from a confused mental state due to illness. If another family member believes that this is the case, the will could be challenged in court.
Lack of Testamentary Capacity
An individual has to be of sound mind to execute a will. Generally, that means the person must understand the nature of what he or she is doing in creating the will and the consequences thereof. A person with advanced dementia, or Alzheimer’s disease, can lack the requisite capacity to draft or alter a will.
Generally, capacity to create a will requires that someone be oriented, know who their intended beneficiaries are, and know what assets they have to disperse. If there are medical reasons why the testator would not have had this capacity at the time that the will was executed, this should raise a red flag. There’s a good chance someone will contest the will by presenting medical evidence in court of the testator’s reduced capacity.
In the context of will challenges, fraud comes in many forms. It could mean the forgery of the testator’s signature or that of one of the witnesses. Pages in the will could be missing or swapped out for new ones. Fraud may even mean that the testator was lied to about an asset or some other key fact was misrepresented to him or her. This can have an improper influence on the terms of the will.
Fraud is a serious accusation and may require the input of expert witnesses who can determine whether a signature is forged or if there is something else suspicious about it. However, if successful, the will could be invalidated.
To be valid, a last will and testament must meet certain basic criteria, including:
- Age: the testator must be at least 18 years old
- Writing: a will must be in writing (with very limited exceptions)
- Signature: it must be signed by the testator or by someone else in the presence of and at the direction of the testator (if the testator cannot sign it)
- Witnesses: wills require two disinterested witnesses, meaning they aren’t beneficiaries of the will.
We Can Help Keep Your Will From Being Contested
There’s no way to guarantee that someone – for example, a disgruntled family member who didn’t receive the inheritance he or she wanted – won’t challenge your last will and testament after you pass away. But we can help take steps to reduce the likelihood of a successful will contest. Let SederLaw help draft or update your estate plan. Connect with our Estates & Trusts team today.