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Grounds for contesting a will

When contesting a will, you must have valid grounds. Challenging a will can be problematic because the testator, the author of the will, cannot defend or rationalize their wishes. The court system tends to stick to the testator’s wishes as outlined in the will unless the challenger can prove valid grounds for the will to be contested.

 

Testamentary capacity

One of the most common, and successful, reasons to contest as will is lack of testamentary capacity at the time of signing. Testamentary capacity is the testator’s capacity to understand the nature and extent of one’s property and how by signing a will they are disposing of the property. Any legal adult is presumed to have testamentary capacity.

In order to challenge a will based on mental capacity you must demonstrate the testator did not understand the consequences of making the will at the time of the creation. As we age, we grow weaker physically and mentally, and mental capacity does deteriorate, but the challenger must have proof.

Fraud or undue influence

Fraud is another reason to contest a will. In cases of fraud, the manipulating party could have used trickery when having the testator sign the will. For instance, if the testator thought they were signing a power of attorney document when in fact they were signing a will, it would be fraud.

In cases of undue influence, the testator is manipulated into leaving all or much of their property to the influencer. The influencer can use threats, extreme force or isolation tactics to influence the free will of the testator. Fraud and undue influence can be hard to prove as evidence is often circumstantial.

Sufficient witness and additional wills

A witnessed will should be signed and dated in accordance with state laws. A witnessed will is generally typed and then signed and dated by the testator. In California, a will needs to be witnessed by two adults. These witnesses cannot be heirs in the will. In a holographic will, a will that is written in longhand, a witness is not required, but the court will consider if it represents the actual intentions of the maker.

If another will is found, the older will can be contested. In most cases the newer document will trump the older one. Often the testator will write in the will that it is a new version and supersedes the older version.

When a will is successfully challenged, the entire will can be voided or just a portion, depending on what portion of the will was contested. If a will is voided, the court system will distribute property as if the will had never existed. Contesting a will can be a lengthy process, before starting make sure you have valid grounds to challenge it.

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