Before proceeding to create a will, appoint heirs, or dictate and put into writing your wishes when you die, seek expert legal help. Last wills and testaments are legal documents, and any legal document must be under estate planning law.
Drafting and setting up a last will and testament must follow a certain legal process. If it is not according to any relevant statute and estate law, the last will could be contested. A trusted estate planning attorney can help you know how to write a will and explain further the four common grounds for contesting a will mentioned below. After all, someone attempting to bring to court and contest the validity of your last will is the last thing you would want.
1) The will was not prepared pursuant to state law
While writing a will is in itself complicated, equally complex is the way the paperwork should be signed, which vary from state to state. This is true for the last will and other estate planning documents. The testator, or the one making a will, must sign it in the presence and hearing of two witnesses. The testator and all of the witnesses must be in one room and all should have witnessed the others sign.
Consult with an expert when you write a will. You do not simply leave a gift or disinherit your adult children on a whim. While the will you wrote might be valid (or seem like so), it could be invalidated and be made subject to the probate code. As with any other estate document, there are certain signing guidelines and formalities that must be followed to ensure its validity. In the same way, someone could contest a will based on such.
2) Testamentary capacity of the testator was limited
Testamentary capacity is necessary when drafting a will. This signifies that the testator can understand the value and nature of the inheritance that he or she intends to distribute through the document he or she drafted and signed.
Having testamentary capacity means that an individual can understand the legal effects of signing, particularly who should inherit his or her personal property. A testator with signs of early dementia could still have testamentary capacity. Consulting with an experienced estate planning lawyer will enable you to know how to write a will that will likely not be contested based on incapacity.
3) Undue influence was enacted over the testator
An individual who proceeds to leave behind a will might have been subject to undue influence. You will likely draft a will for you to be able to make decisions on things that will matter once you are deceased. Be it transferring to loved ones or a specific heir, naming disinherited siblings, or choosing a successor who will carry out certain tasks, it is essentially about executing your wishes at the time of death. The opposite would be the case if a testator was put under severe duress, to the extent that he or she lost his free will. Under estate administration law, a will can be contested if undue influence can be proven.
4) The testator was defrauded
As you make your will, you will likely decide on the beneficiary designation. Naming and distributing assets to beneficiaries often involves your would be surviving spouse, children, grandchildren, or any other surviving family member you opt to designate. However, there are certain unfortunate cases where one of these tricked the testator into signing a will. He or she could have been told that the document was merely a deed or power of attorney when it is a will.
Note that if at least one provision of a will is rendered invalid, the remainder of the will would also be invalidated. It would be as if the deceased person did not make a will or estate plan at all. The probate process is rarely simple, and you would want your loved one to avoid probate as much as possible, especially after you pass away.
Creating a will is something you must concern yourself with today, even if its usefulness will not be manifested until after death. Get legal advice from an expert on wills and estates law before proceeding. Depending on the circumstances, wills can be contested by essentially anyone related to the decedent.
For concerns on wills, trusts, guardianship, or intestacy, or if you have to deal with matters in the probate court, call our law firm for assistance. Contact us at Waldron Law Group.