A will is one of the most important documents that a person can write and is typically the best way for someone to declare what they want to happen to their property after they have died. This is why many wills go through the probate process fairly smoothly with no one contesting the will or demanding changes. That said, when someone does believe that a will does not show what the testator wanted and instead has some kind of error, it is possible to challenge a will. When this is the case, you need an estate planning lawyer from Klenk Law to help you. It is not easy to challenge a will and it requires evidence to prove that you believe the will is not what the testator had wanted.
How can you challenge a will?
You may be wondering under what circumstances you can successfully challenge a will. Below, we discuss a few possibilities.
- Fraud. Your litigation attorney may be able to help show that the will should not pass through probate court if you can prove that this will was forged or that there was some type of undue influence. One of the most common examples is if the testator was elderly or had some kind of mental incapacity. When this is the case, it is not uncommon for someone to form a close relationship with the testator and abuse that relationship and their power to get the testator to change aspects of the will. When this happens, there has been undue influence. Fraud can also happen if someone has access to a will and makes changes to it.
- Capacity. Another common time that litigation occurs is if the testator is believed to be mentally incapacitated when they were creating the will. This means that they may legally be insane or that they are suffering from an illness like dementia. This is not easy to prove, but you and your estate litigation attorney must show that the testator did not understand the repercussions of what they wrote in the will or how valuable their property was, among other things.
- Witnesses. If the will does not have the required number of witnesses, it can easily be voided. Typically, a will is to be typed up, signed by the testator, and signed by at least two witnesses who are not mentioned as heirs in the will. If one of these things is not true (depending on the state), one could easily challenge a will.
When issues come up with a loved one’s will, it is not always an easy decision to challenge their will. However, if you believe that they were unfairly influenced when creating the will or that information or people were intentionally left out, working with an estate litigation attorney could make the difference in questioning the will.