Typically, the only people who can successfully challenge a will are those who are financially dependent on the person who has died (the testator), such as a spouse or child. However, anyone can challenge a will, but there is no guarantee of a successful outcome. It is exhausting both emotionally and financially, as well as a time consuming process.
It is always possible for a family member to try to invalidate the will so that intestacy law replaces the original will and some of the testators’ assets are distributed differently and perhaps in favor of another previously excluded family member.
So how can a will be invalid?
If it can be proved that the testator had no mental capacity.
This means that the Testator:
to. I didn’t know they were signing a will.
B. Didn’t know they were giving away their property.
vs. He did not know who normally benefits from a will.
Incorrect signing of a will (attestation).
There must be 2 witnesses, both witnesses must see the Testator sign the Will and each must also sign the Will in the presence of the other. Any other arrangement will jeopardize the validity of the will.
Whether undue influence or coercion can be proven.
If it is believed that a family member may have coerced or improperly influenced the Testator in the preparation of the will. It is also increasingly common for coercion by a caregiver or neighbor to be cited as the reason for invalidating a will.
If the will is the result of fraud.
If it can be shown that the will was not written by the testator. With the advent of online wills, is it not possible to make a will online, print it, forge the signature, and present it at the time of death as the legal will?
So how can you minimize the risk of a will being challenged from the 4 points above?
- Mental capacity – A doctor’s statement that you are of sound mind and even a video of you explaining your actions is good protection. Video images are apparently becoming more popular, although perhaps overwhelming for family members!
- Signing of the will: Make sure it is done correctly and notify witnesses that they may be asked to testify in court about their participation in the witnessing process.
- Undue Influence: It’s complicated, but if a professional licensed will writer or attorney is used and at least one meeting is ensured that no other family member or beneficiary is present, this threat should be reversed.
- Fraud: The hardest thing to prevent, probably the best way would be to make sure you have your will professionally prepared and in a safe place with all executors aware of the location of the will.
A good will writer will always take detailed notes and keep them with his clients’ files. This can help if a will is contested, as the notes may be available for the court to decide the testator’s intentions if there is a valid dispute. By being aware of the contentious areas highlighted above, you should be able to make an iron-clad will ensuring your wishes are carried out to perfection.