What You Need to Know About Contesting a Will

What is a will? A will is basically a legal document stating the wishes of the testator with regards to the distribution of their assets upon their passing.

When a family member dies, chances are his or her assets will go to you as the surviving spouse or remaining child depending on what the will itself says. This means that you end up becoming the sole owner of the testator’s assets, such as a car, finances and real estate properties.

But what if for some reason those assets end up going to someone who you think doesn’t have any legal rights to them. Can you actually contest a will if something strikes you as suspicious or strange? What rights do you have in the event that something like this happens?

In the next section, we’ll learn more about what contesting a will entails and how the process goes. Here’s what you need to know about contesting a will:


Mental State of the Testator

The first thing to consider is the mental state of the testator or the person who wrote the will. He or she must have the testamentary capacity to make a will. In other words, he or she must be in the right frame of mind to prepare and draft a will. Typically, courts examine if the testator knows the following:


  • What it means to make a will.
  • Who will be provided for in the will.
  • What he or she owns.
  • How to distribute the assets.


With all these in place, the court ensures the validity of the testator’s written will.


Contest a Will due to Undue Influence

What, then, are the grounds to contest a particular will? In most cases, you can contest a will due to undue influence. Typically, you will assert that a sister, brother, caregiver, or another relative coerced the testator to prepare a will in their favor. That said, below are the standard factors that a judge will examine in cases of undue influence:


  • An unusual distribution of assets is a red flag. For instance, you are expected to get a certain portion of the assets, but you are excluded for some reason. The assets are then assigned to the testator’s personal caretaker.
  • There was a confidential relationship. Chances are this confidential relationship made the testator susceptible to being pressured by the person in question.
  • The person who had a confidential relationship with the testator is the one who ended up benefiting from the unusual distribution of assets.
  • The person who had a confidential relationship with the testator seems to have abused their trust.


Contest a Will due to Failed Will Formalities

Should the will formalities have failed, you have grounds to contest a will. So you should check if any will formalities really were violated before contesting the will. In most cases, the common will requirements are as follows:


  • The testator should be at least 18 years of age.
  • The will does something substantial.
  • The will should be duly witnessed
  • The testator’s wishes should be clearly stated in the will.


Reasons You Can’t Contest a Will

On the other side of the spectrum, there may be reasons why you can’t contest a will. It’s better to be aware of these reasons before you take the plunge in order to save time and effort. So what are the circumstances under which you can’t contest a will? They are as follows:


  • You were promised something verbally, but you didn’t receive anything.
  • The will was written using an online service.
  • You think you deserve something.


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Disclaimer: The author, the publisher and the vendor of these forms makes no representations or warranties regarding the outcome or the use to which these forms are put and are not assuming any liability for any claims, losses, or damages arising out of the use of these forms. The user should not rely on the author or the publisher of these forms for any professional advice. Always consult with a lawyer regarding the rules and regulations governing your residing state/province. The information provided is for illustrative purposes only and not for the purpose of providing legal advice. You should contact an attorney to obtain advice with respect to any particular issues and concerns related to the drafting of wills and other legal documents. Remember that individual situations and estate planning needs differ, and this Kit may not be suitable for your specific circumstances. Kit may vary upon receipt.
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