Tag Archives: challenge

When can a Decedent’s Last Will be Challenged?

March 2, 2015 Dennis Astill Leave a comment

Challenging a decedent’s Last Will and Testament is a serious matter. When you object to a Will, you are questioning the validity of it. Most objections to a Will are filed by relatives that are angry because they were not named as a beneficiary and they assume it was a mistake. Another common scenario is when a spouse objects to a Will that was drafted before the marriage and does not name him or her as a beneficiary.

There are numerous reasons a Will can be held invalid. Below are a few examples of the most common grounds for a Court to render a Will unenforceable:

Lack of Mental Capacity. The law requires a testator to have the mental capacity to understand the nature and amount of his or her estate. The testator must comprehend who has been named as the beneficiaries and how the Will distributes his or her property. If it can be proven that the deceased lacked adequate mental capacity, the Will may be held invalid.

Undue Influence. A Will must be created and signed freely and without coercion by third-parties. A Will executed under duress is invalid.

Mistake or Fraud. If a Will was signed by the testator based upon a misunderstanding of the contents of the Will or if there is actual fraud involved, the Will is unenforceable.

Revoked Will. A Will that has been previously revoked by the testator cannot be enforced.

Failure to Meet Requirements. Every state has specific requirements that must be met in order for the Will to be valid. If it can be proven that one of these requirements was not met, the Will may be successfully challenged.

Will challenges can be expensive and damaging to your family relationships. Consideration should be given to strategies to defeat a claim in advance. If incapacity is a concern, having a Doctor or medical professional confirm legal capacity is advisable. If a testator is making a gift to a caregiver, special care should be given to avoid claims of undue influence. Finally, proper drafting will avoid most challenges. Avoid DIY (do it yourself) Wills or you are almost certain to open the door to claims. If you want to ensure that your Will cannot be successfully challenged, we can help. Additionally, if you are interested in learning whether or not you should object to a loved one’s Will, contact our office.

The Astill Law Office has provided high quality legal services for over 30 years. We specialize in wills, trusts, estate planning, and asset protection. If you have any questions about creating a Trust, Will, or estate planning in general, contact The Astill Law Office at 801-438-8698.

Estate Planning

Challenging a Will

January 7, 2015 Dennis Astill Leave a comment

If you are considering challenging the validity of a Last Will and Testament of a loved one, you should understand it is serious business. Even if your objection to the Will is a simple claim that a simple mistake was made, it can bring the validity of the entire Will into question. There are numerous circumstances where a Will can be contested, including:

Lack of mental capacity. If the court finds that the testator lacked the mental capacity to understand the nature or amount of his or her estate, or how the Will disposes of the estate, the Will can be held invalid.
Failure to comply with the law. If a Will fails to meet the requirements set forth by the applicable law (such as in writing, witnessed, notarized, etc), it may be successfully challenged.
Mistake or fraud. If the testator signed the Will based upon a misunderstanding or actual fraud, it can be held invalid.
Undue influence. If the testator made the Will under the undue influence or duress of another party, it can be held invalid. A Will must be made freely and without coercion of anyone else.
Revocation. If a more current Will exists, or if the testator otherwise revokes the Will that has been submitted for probate, the objection to it may be upheld.

Challenging the validity of a Will usually involves serious, expensive and protracted litigation and division within families. It should not be undertaken lightly or with the hope that a quick settlement will result. Only an experienced estate planning attorney can help you evaluate the case and the wisdom of challenging the Will. Exploring all of the facts and circumstances before filing an action is necessary to determine whether it is prudent. In cases that merit the challenge, you may need both an estate planning attorney and a good trial attorney.

To learn more about contesting a Will or defending an objection to one, contact our office today. The Astill Law Office has provided high quality legal services for over 30 years. We specialize in wills, trusts, estate planning, and asset protection. If you have any questions about creating a Trust, Will, or estate planning in general, contact The Astill Law Office at 801-438-8698.

Uncategorized

Undue Influence versus Lack of Capacity

December 9, 2014 Dennis Astill Leave a comment

There are many legal terms used in the world of estate planning and probate, so it can get quite confusing. Two common reasons the validity of an estate plan may be challenged is that the decedent was the victim of undue influence or lacked the capacity to properly sign the will or trust document. It is important to understand the differences between these two terms.

Undue influence is alleged if the decedent suffered a weakened state of mind and another party took advantage of it. It commonly occurs when a caregiver influences the elderly person into signing a will or trust leaving a significant amount of the estate to the caregiver as “payment” for his or her services. It also occurs when someone is in a special position of trust in relation to the elderly. This can include a caregiver or someone who helps the elderly person do their banking and pays their bills. Undue influence can occur in a variety of forms ranging from threats to simply making the elderly person feel guilty. The key to proving undue influence occurred is establishing the weakened state of mind of the decedent at the time the estate planning documents were signed. If this can be proven, the burden of proof may shift to the other party.

Lack of capacity occurs if the decedent did not understand the document or the consequences of it when it was signed. In order to have sufficient capacity, the signor should know the extent of their estate, the nature of their relationship to the beneficiaries and they must understand that he or she is executing estate planning documents. Medical evidence is often necessary to prove lack of capacity. Any other evidence establishing the signor’s true intent can be extremely beneficial.

If you have questions regarding estate planning, we are here to help. We will walk with you every step of the way and ensure that you are never left wondering what should be done next. Contact us today for the answers you need.

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