When creating a will, getting a reliable estate planning attorney is necessary for various reasons. Before proceeding to create a will, appoint heirs, and write down your wishes when you die, first get legal help from lawyers specializing in estate planning laws. Always remember that last wills and testaments are legal documents. As with any legal document, you have to ensure that they are pursuant to estate planning law.
There is a legal process that must be followed when drafting and setting up a last will and testament. Anything that is not pursuant to estate law could lead to the last will being contested. This article discusses four common grounds for contesting a will, which you should keep in mind as you prepare yours.
1) Specific state law on preparing a will was disregarded
When you are done writing a will, you don’t simply sign it. Estate planning documents follow very specific laws on how the last will should be signed. This can vary from state to state. Usually, the testator (the one making a will) must sign the paperwork in the presence and hearing of two witnesses, minimum. The witnesses and testator should be in one room and all must have witnessed the others as they are signing.
Write a will with the help of an expert. While the will you wrote might be valid (if it was a fortunate circumstance), there are chances that it is not. There are certain formalities and signing guidelines that must be followed to ensure the validity of such an estate document. Otherwise, someone could contest a will based on this.
2) There is a lack of testamentary capacity
Testamentary capacity signifies that the person drafting a will 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). This means he or she understands who should inherit his or her personal property and other legal effects of the signing. Someone with signs of early dementia may still have testamentary capacity, as long as necessary details are still well understood. An estate planning lawyer can explain to you how to write a will that will likely not be contested.
3) There was undue influence
The person who wants to leave behind a will might have been subject to undue influence. When you draft a will, you want to make decisions on things that will take effect when you’re deceased. These could be on transferring to a specific heir, if any sibling will be disinherited, who among your loved ones will be your successor, or who will carry out or will be executing your wishes at the time of death, among others. It is, however, possible that the testator was put under severe duress, to the point he or she lost his free will. If such is proven, the will can be contested.
4) There was a fraud
You usually make your will to ensure that whoever is in charge of estate administration will be distributing your assets to the beneficiary designation. Naming beneficiaries often involves your would-be surviving spouse, children, grandchildren, or any other surviving family member you designate. Unfortunately, however, there are instances where one of these would trick the testator into signing a will. The testator could have been told that the document was merely a power of attorney or a deed when it is a will.
If at least one provision of a will is rendered invalid, it would be as if the deceased person did not make a will at all. Any estate plan attorney could tell you that the probate process is complicated, and you would want your loved one to avoid probate especially after you pass away
While creating a will is something you must be concerned about at present, its use and value will not be made manifest until after death. Wills can be contested, and that’s the last thing a decedent would want. This is another reason why you should get legal advice from an expert on wills and estates law before proceeding.
For any questions on wills, trusts, guardianship, or intestacy or if you find yourself in probate court, contact a trusted law firm for assistance. Call us at James A. Jones Attorney At Law.