In most cases, challenging a will is difficult. An estimated 99% of wills go through the probate process without any challenges. The courts view wills as the testators’ voices, who are the people who wrote the wills. Since the testators are no longer able to speak about what he or she wants, the courts adhere stringently to their wills. Anyone who has an interest to gain can challenge a will. The people who are likeliest to be successful with their challenges are the spouses of the decedents. In many successful will challenges, the people who are challenging the wills argue that the testator did not have the testamentary capacity or was coerced or unduly influenced to write the will in the manner in which he or she did.
If a person is successful in his or her challenge of a will, it can be either be completely voided, or a portion of it may be determined to be invalid. In some cases, a court will reinstate a prior provision from an older will that predates it. If the will is completely invalidated, the court will distribute the decedent’s property under the intestacy laws of the state. At Elder Care Direction, we can help you to understand what will challenges are and refer you to a probate and estate attorney if you need further legal help.
What is testamentary capacity?
People who are ages 18 and older are able to write wills. Minors do not have the legal capacity to write a will. In some areas, however, minors who are married or who are in the military may be given the right to write wills.
There is a presumption that adults who are 18 and older have the capacity to write a will. When someone challenges a will based on a lack of testamentary capacity, the challenge is normally based on the testator’s dementia, senility, mental illness, substance abuse, or another way that caused him or her to lack the capacity to write a valid will. Challengers must show that a testator did not understand the consequences of writing the will at the time that the testator created it. Testators must understand all of the following:
- The value and extent of his or her property
- Who the will beneficiaries are
- What a will means
- The manner in which he or she is disposing of his or her property
- How a distribution of property is formed by the will
Fraud, forgery, and undue influence
A will can be challenged if it was procured by forgery, fraud, or undue influence. These types of cases may involve a person who has manipulated a vulnerable testator into leaving most of his or her property to the person who manipulated him or her.
A different will exists
In some cases, a will may be outdated. A newer will may trump an older will. People who have written newer wills may destroy the outdated wills or state in the newer wills that they want to void the earlier wills. Making certain to date the will is important. If a valid will is found that has a more recent date than the will that is being executed, the court will likely follow the more recent will.
Testators must sign and date the will in front of at least two witnesses who are adults. In many states, the witnesses cannot be the people who are named as beneficiaries in the will. Some states allow unwitnessed, handwritten wills. These types of wills are called holographic wills. They have to be written and signed completely in the testator’s own handwriting. Some states also require that holographic wills are dated. Since there aren’t any witnesses, holographic wills are the simplest to challenge. The court must find that the will is written entirely in the testator’s handwriting and that the testator created it to serve as his or her will.
Provisions of the will
The laws about what must be contained in a valid will vary from state to state. Most require that a will include the following:
- An explicit statement that the document is the will of the testator
- A minimum of one substantive clause
- An appointment of an executor to be responsible for executing the will
- A self-proving affidavit
A will does not have to be notarized. However, most people include a self-proving affidavit that is sworn and signed by the witnesses in front of a notary public. This helps the witnesses so that they will not have to come to court later on if the will is challenged.
The testator’s residence
If the will is legal and valid under the laws of the state where the testator’s home is located, then it will be valid in any state where he or she may have died. For example, if a person has his or her primary home in New York and has a vacation home in Florida, the will that he or she created in New York will be valid even if he or she dies in Florida.
Talk to Elder Care Direction about will challenges
Elder Care Direction focuses on helping older adults and their families to navigate the complex issues that can happen as people age. We can help you to understand wills and what is required for them in your state. We are able to assist people with filling out forms and can refer you to an estate planning attorney for further legal help.
Wills can be important for the family members of older adults. However, there are circumstances in which a will should either be amended or voided. There may be provisions that should not be enforced in your loved one’s will. If you would like to understand whether to challenge a will, contact Elder Care Direction to schedule a consultation.