The last few days have been absolutely heartbreaking for your aunt. Her husband of 15 years passed away two days ago, and she’s been left with trying to deal with the grief—along with making all of the arrangements on her own. Your uncle’s two estranged children from a previous marriage flew in from out of town this morning, but instead of helping with the funeral, all they seem to be worried about is his will.
Although you advised against it, she told them this afternoon that he had his will recently rewritten, and the majority of his property, including the house, was endowed to her for future security. Apparently, before his death, he advised her that through her own discretion, she could divvy a certain amount amongst his children if she wished. But as they could never be bothered to take the time to see him while he was alive, he didn’t feel as though they should benefit from his death. Thankfully, she left that last part out of their conversation, so as not to aggravate the situation further.
You spoke to her about an hour ago and she claimed the conversation went as well as could be expected. They were both clearly upset, but didn’t say much in return. However, an hour later, your aunt calls you in tears. Apparently, the children hired a lawyer to contest the will, because they feel like since they’re blood relatives, they should receive more financial security than what he felt was necessary.
The entire situation is absolutely preposterous. Do they even have the right to challenge his will?
Proper Grounds for Contesting a Will
Although 99 percent of wills go through probate without challenge or contesting, certain factors have been known to raise doubts about the legal validity of some last wills and testaments. These factors include:
- Testamentary capacity (TC) – Challenging a will based on the validity of the deceased testamentary capacity—ability to make informed decisions—at the time the will was formed. Most TC challenges are based on the notion that the deceased was senile, had dementia, was legally insane, was under the influence of a substance, or in some other way lacked the mental capacity to properly understand the ramifications of the will. To successfully challenge a will based on mental capacity, you must be able to adequately show that the testator—the person who created the will—did not understand his actions when creating the document.
- Fraud, forgery, and undue influence – Challenging a will based on the notion that the document was forged or fake. To adequately contest for fraud, you must be able to show that the will or testator was manipulated into leaving all, or much of the property to the manipulator.
- Another will trumps the one being executed – If there are multiple versions of a will, the most recent testament is the one that will be executed. If the executor is trying to carry out the provisions of an outdated will, the newer will can trump the older will. Each state varies as to what is constituted as a void or updated will, so be sure to check with your state's laws.
- Lack of sufficient and appropriate witnesses – A typed hard copy of the will must be dated and signed by the testator in the presence of at least two adult witnesses. If the will wasn’t properly witnessed, validity can be questioned.
Taking the Confusion Out of a Will Reading
The loss of a loved one is hard enough without the added frustration, confusion, and bickering over his wishes. Let an experienced lawyer alleviate some of this stress by helping you understand your rights as a named beneficiary. We can help give you the support, guidance, and advice you need to make sure your loved one’s last wishes are met. Call today!
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