Contesting a Will is not as simple as most people believe. You cannot challenge a Will solely because you do not agree with its terms. There are certain legal elements that must be established first, and proving each one of them is not a walk in the park. The process involves a large expenditure, from expert fees to attorney’s fees to the court fees. However, if you can prove that at least one of these elements exist, then a Will can be overturned.
1. Relevant State Laws Were Not Followed When Signing the Will
There are certain laws that must be followed when signing a Will. For example, the person who is leaving the Will (known as the testator) must sign the Will in the presence of two or more witnesses. The witnesses should be in the same room as the testator and must sign the Will as well.
You would think that a Will executed in the office of an estate lawyer would follow the right legal procedures, but that is not always the case. In fact, failure to follow the necessary state laws is the most common reason for invalidating a Will.
2. Lack of Testamentary Capacity
The testator should understand the value and nature of his or her assets, as well as the natural objects of those assets. That is, who should inherit the assets – logically speaking, bearing in mind the legal implications of signing a Will.
The testator must meet a certain threshold for the disputant to prove that they lacked testamentary capacity. However, the condition must be extremely severe for the case to hold up in court. For example, there have been instances where the testator was shown to have dementia but the court ruled that they had the testamentary capacity to sign the Will. In cases like this, the testimony of the witnesses present when signing the will becomes crucial to the outcome of the contest.
3. Undue Influence on the Testator
As people age, they become physically and mentally weaker, making them more vulnerable to other people’s influence. In order to prove undue influence when contesting a Will, you need to show that the alleged influencer exerted so much pressure on the testator that it caused him or her to lose their free will. This does not mean simple threats, nagging, or verbal abuse. You have to consult with the testator’s lawyer regarding payment for the Will, provisions of the Will, and how the influencer isolated the testator from his/her family and friends.
4. Fraudulent Procurement of the Will
When a Will is procured by fraud, it means that the testator was tricked into signing the document. This can be done by, for instance, presenting the testator with a document that is alleged to be a title deed, which ultimately turns out to be, in fact, a Will. In this case, the Will is said to be procured by fraud. The quandary is that the testator cannot be questioned about the document he/she thought they were signing. However, the witnesses must be questioned about what they themselves thought was being signed. If their testimony does not add up, then the Will could be invalidated.
While a Will is not a complicated process, certain legal elements must be maintained to make the document valid. If you need an experienced attorney to help you with your estate planning, the Amsberry Law Firm has you covered. Call us today at (210) 354-2244.
Attorney Russell J.G. Amsberry
Attorney Russell J.G. Amsberry founded the Amsberry Law Firm in 1995 with the goal of providing clients with exceptional, focused representation on their issues. His success as a legal advocate has been reflected in the numerous professional honors he has received, such as speaking engagements and inclusion in Scene in SA magazine’s listing of the best lawyers in San Antonio, a Distinguished rating from Martindale-Hubble, and an amazing rating from Avvo. [ Attorney Bio ]
Amsberry Law Firm
Latest posts by Amsberry Law Firm (see all)
- Six Essential Pieces of a Pre-Planned Adoption Agreement - July 8, 2022