Personal Injury Attorney
Every so often people enquire about challenging a will. What a lawyer will explain is that doing so is typically very complicated. In fact between 98 and 99 percent of wills pass through the probate process without any issues.
In general the court will consider this document to be the voice of the testator, or in other words the voice of the person who wrote the will. Because the testator has died, they cannot actually speak about their true wishes. As a result, the court is typically inclined to adhere to what is written.
That being said if you might have an interest to gain from a will, or in some cases a living revocable trust, you may be able to contest the will. In general, the most successful contestants is a spouse, and the most successful grounds for a court to uphold the contest is when the testator lacked testamentary capacity or they were persuaded to draft the document in a particular way.
If you do choose to contest a will, and a judge rules in your favor, it can be voided all together, or partially. For example, if a will has been drafted and updated from time to time, with new provisions, a judge might reinstate a previous provision or part of the will. Should a judge rule that the will is null and void, they will treat the estate as if no will existed. In this case it would follow the laws of intestacy in that state.
Who Can Challenge a Will?
Lack of Testamentary Capacity
Under all states, a person must be at least 18 years of age to draft a will. The exception to this rule is minors who are enlisted in the military or are married. It will be presumed that an adult has a testamentary capacity to draft a will. However, it is possible to contest a will on the grounds that the adult was not capable of doing so. Typically, this will be on the basis that the adult had dementia, a mental illness, senility, a severe addiction, or some other condition that prevented him or her from making sound decisions. To prove a lack of testamentary capacity, you must be able to show that the testator drafted the will, but did not understand the consequences of what they were writing at the time of its creation.
Fraud or Undue Influence
Another way to contest a will is to prove that it was forged or drafted under fraudulent practices or undue influence. Usually in this type of scenario, the testator would have drafted the will while being under the influence of someone who was manipulating them.
There Exists More than One Will
Sometimes there will be 2 or more wills. If the executor of the will is found to be carrying out the provisions or wishes of the outdated will, the more recent will legally trumps the old one. There are requirements that should be carried out in a destruction of an older will. Usually, the court clerk should be notified, or an estate planning lawyer to assist with this process.
In the case of a will contest with multiple wills, the court will generally favor the newer will. There may be circumstances to prevent this from happening so you should retain a will contest law firm for further help.
Before you decide to contest a will or any other part of an estate plan, it is highly recommended to talk with an estate litigation lawyer in Memphis, TN first.
Thanks to Wiseman Bray, PLLC for their insight into estate planning and challenging a will.