It may not come as much of a surprise that family members contesting a will is quite common. Even if you try hard to eliminate the chance of family disputes, you may not be completely successful. However, you can take steps to avoid family squabbles over inheritance if you understand some of the common reasons for contesting a will.
The four primary legal reasons for contesting a will
There are basically four legal bases for contesting the validity of a will. There could be a question about whether the will was properly signed or whether the signatures are authentic. There may also be concerns about whether there was a lack of testamentary capacity when the will was created. In some cases, it may be suspected that the will was written under undue influence or through fraud. Each of these legal reasons can be hard to prove, as well as expensive to litigate. Nevertheless, that does not seem to discourage some from bringing these issues to court.
Establishing whether the will was properly signed
Every state has its own set of laws regarding wills and trusts. These laws establish the specific requirements for a valid will. In most cases, the document needs to be signed by the person creating the will, as well as one or two witnesses. Those witnesses are normally required to be present while the will is being executed. A vast majority of will contests are based on the authenticity of the signatures, especially if a required signature is missing.
Determining whether there was a lack of testamentary capacity
A will cannot be valid if it is shown that the testator lacked the required testamentary capacity. The Texas Estates Code § 1002.017 defines “incapacitated person” as follows:
an adult individual who, because of a physical or mental condition, is substantially unable to provide food, clothing or shelter for himself or herself, to care for the individual’s own physical health, to manage the individual’s own financial affairs, or a person who must have a guardian appointed for the person to receive funds due the person from a government source.
Even if in situations where the incapacity is only temporary, you may still need to establish that the testator had sufficient legal capacity at the time the will was executed. Proving incapacity can be a challenge in most cases, as well as a very expensive proceeding.
Suspicion that the testator was subjected to undue influence or coercion
Unfortunately, it is not uncommon to suspect that undue influence or coercion was used to pressure the testator into either creating the will or including specific language in the will. This is a common issue when there is evidence that the testator was likely emotionally vulnerable in some way. The fact is, as we age, we are more likely to experience some loss of our mental faculties. This can be exploited by relatives or friends close to us. As with establishing incapacity, demonstrating undue coercion can be difficult.
Demonstrating that the will was obtained through fraud
Deception is a serious issue in creating wills. Similar to undue coercion, fraud in the creation of a will is also an issue. A will can be challenged with evidence that the testator was tricked into either signing the will or including certain provisions in the will that the testator did not intend. For instance, a testator may be handed a document and told it is a deed or power of attorney, when in fact it is a will. The difficulty in proving fraud is that the primary witness is the testator and that person is no longer around to testify. As such, the witnesses who signed the will become very important in establishing the validity of the will.
A self-proven could help to avoid a will contest
In order to ensure that time won’t be wasted contesting the validity of your will, after you have passed on, you should consider establishing a “self-proving” will. What that means is, because your will is signed in front of a notary, along with the signatures of your witnesses, you will is presumed to be valid. In order to create a self-proving will, you must also have a notarized affidavit that certifies who you are and the fact that you and the witnesses knew what you were signing. This affidavit should be a separate document.
If you have questions regarding will contests, or any other estate planning needs, please contact The Vermillion Law Firm, LLC for a consultation either online or by calling us toll free at (888) 567-5745.