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Challenging a poorly created will

On Behalf of | Mar 31, 2018 | Estate Planning And Probate

Traditional estate planning wisdom states that every person should have a will if they have any property or personal end of life wishes, but simply having a will is not always an effective guard against complications in estate dispersal, especially if the will receives challenges.

Challenges to a will are far more common than one might think, especially for estates of significant value. In general, the larger the estate, the more likely it is that some party or another will find a way to feel slighted by the testator’s wishes, or a creditor may pursue payment on a debt against it.

If you have concerns about the validity of your own will, or suspect that you may have valid grounds to challenge a will you are party to or believe you should be party to, it is crucial to assess the will and your relationship to it carefully through the eyes of the law.

An attorney with years of experienced in estate planning and the conflicts that arise around will execution can help you look at these issues in detail and ensure that you have the proper tools to protect your interests and rights in the matter.

Was the will creator able to legally create the will?

The will creator, or testator, must be capable of creating the will in a legal sense in order for the will to hold up in court. This is meant to protect against a person who is not in one’s right mind or whose faculties are diminished from creating a will he or she might otherwise not create, or from being taken advantage of by some other party.

In general, minors may not create wills, and a will created by a minor is generally not considered legally sound, with some small exceptions. Likewise, an individual who is under the influence of substances, or who has lost significant portions of his or her sanity is not considered to have testamentary capacity, or the legal ability to create a will.

Was the will executed and created correctly?

It is also possible to challenge a will if it was not created in a proper way, or if the terms within the will do not abide by the law. For instances, a will may receive successful challenges if the witnesses who were present at the signing have some interest in the terms of the will. Witnesses must, by law, be uninterested parties, meaning they do not benefit from the terms of the will.

Similarly, if a will contains terms that do not align with the laws that govern estate planning, property ownership and taxes, it may receive challenges or take a long time to resolve.

Should you suspect that your will or a will you are party to has weaknesses that require addressing, be sure to use all the resources you have to resolve this matter as soon as possible, for the sake of all involved.