Grounds for Challenging a Will
A will contest is less common than consumers may think. By some estimates, 99 percent of estate plans will go through probate without a contest or question. However, when an estate plan does not meet legal requirements, or the maker had a questionable mental capacity, the family members of the deceased may contest the will.
Will contests are avoidable with solid estate planning services in San Diego. Often, when a will is contested, it was not thoroughly prepared, or the testator failed to notify family members of their intentions.
While age should never be an issue, it can be with an estate plan. To make a sound estate plan, the testator must be 18 years old minimum. While some states do allow individuals under the age of 18 to make a will if they are married, the universally recognized age is 18.
Mental State or Capacity
Estate planning services in San Diego are required to ensure that their client is of “sound mind” at the time they create their estate plan. The “sound mind” requirement, however, is not as rigorous as one would think. When the courts are questioning a person’s mental capacity, they require that the testator be:
- Aware they are creating an estate plan.
- Aware that they have family members to provide for, such as a spouse or child.
- Aware of their property and all assets that they own.
- Able to decide how they want assets distributed and which beneficiaries they wish to provide for.
For the court to rule a will invalid, the individual must have a glaring mental incapacity, such as diagnosed Alzheimer’s Disease that is very advanced.
Undue Influence and Fraud Claims
Another common reason for a will challenge is undue influence or suspicion of fraud. While these are common grounds, the individual contesting the will must be able to prove that undue influence occurred. Typically, this is established through the testimony of healthcare providers and family members, since the testator will not be around to testify as to their intentions at the time.
Challenging the Contents of the Will
At times, estate planning services in San Diego may not be as solid; therefore, the contents of the will come under challenge during probate. A will must be valid, and all states have specific rules as to what constitutes a valid estate plan. These requirements typically include:
- The estate plan express who wrote it (i.e. an attorney or the testator themselves).
- A provision, such as leaving the property or appointing a guardian.
- Appoint an executor to the estate.
A will is only valid when there are witnesses present for the estate signing. The two witnesses must be adults and the document notarized to verify their identity. Witnesses cannot be those that are to inherit property from the estate. Instead, these witnesses must be unassociated with the estate. Handwritten wills, even those with witnesses, are the most common type of will challenged for witness issues; among other things.