You cannot wake up and decide to challenge a will just because you have a differing opinion. Your Points should be based on legal grounds and should be proven in a probate court. Challenging a will can be expensive since it may attract court fees and probate attorney fees. Ensure that you are a potential beneficiary when contesting the will. Here are the legal grounds on which you can challenge a will in a probate court.
You can challenge a will if you feel that there was a forgery or fraud in the will. Examples of fraudulent activities are when a testator is misled to the advantage of a beneficiary. Another common fraud is a signature forgery. The will’s beneficiaries should not guide or advise the testator in any way when they are preparing the will.
A popular example is the case of Allen v McPherson that occurred in 1874, where one beneficiary misguided the testator through false representation. This made the testator withdraw the privileges that were to be accorded to another beneficiary in a will. Although the law has not set any time limit to challenge forged wills, it is crucial that you do it swiftly.
Contesting a will on the basis of fraud presents a lot of challenges. It may be challenging to prove that the testator was misguided after their demise. The testator should be there to prove that they were misguided.
If the signature were forged, the court would need to bring a handwriting expert who will determine whether the signature is invalid. The professional will need to compare and analyze various signatures before issuing a report.
If the expert’s report indicates that there are chances that the signature was forged, the court will then examine other proofs prior to determining the legitimacy of the will. It would be best to provide the court with witness statements to help the court determine the case.
Undue Influence to Testatrix or Testator
Undue influence often occurs when an individual age and become prone to undue influence, especially from close friends and relatives. This can be in the form of threats and some cases, verbal abuse. The probate court will determine whether the beneficiary used forces or whether the testator wrote the will whilst under duress.
In most cases, the threats and abuse are usually made in closed doors, and there might be insufficient evidence. This may make it hard to prove the case in a probate court. If you are residing in Las Vegas, it is recommended that you seek advice from a probate attorney to help you gather enough evidence. This is because the court will require substantial evidence when proving the case.
There is a time limit for these types of cases. In most states, the time limit is usually six months. You should present your case early enough. If you succeed in challenging the will, the court will then overturn the will.
It is important to note that the physical capabilities of the testator are also considered when determining the case. In a case where the testator is sick and old, the court will be more likely to invalidate the will compared to when the testator is healthy.
The reasoning behind this is that a sick testator may give in to the advances of the beneficiary so that they can have peace of mind. This approach can be used when contesting a will in a probate court. This was seen in the case of Re Edwards in 2007, where the testatrix was old and frail.
The age of the testator does not guarantee that the court will invalidate the will. This issue was witnessed in the case of Nesbit V Nicholson re Boyes in late 2013, where the undue claim was ruled as insufficient by the court. The court needed more evidence since the allegations were deemed serious.
Lack of Good Testamentary Capacity
Testamentary capacity can be described as the ability of the person writing the will to value the assets and to know who will inherit certain assets. The testator should be able to know the legal consequences of writing the will.
You could challenge the will if the testator had mental conditions when the will was signed. You should be able to prove that you are the rightful beneficiary when contesting for the will.
In an event where the testator’s decisions were influenced by a mental condition such as dementia, then the rightful beneficiary can challenge the will. This was witnessed in the case of Smee v Walters in 2008, where dementia made the testatrix believe that one of the beneficiaries was abusing her. This is was not correct.
You should note that the fact the testator was had delusions or other ailments does not guarantee that you can challenge a will for unstable testamentary capacity. This was experienced in the case of Goodfellow V bank in 1987, where the court rule upheld the will.
Emotional instability resulting from the death of a loved one can interfere with mental capability when drafting a will. You can use this approach to challenge a will. For instance, in the case of Key vs Key in 2010, the testator was drafted an inappropriate few days after his wife died. The will was challenged, and the court annulled the will.
This was also witnessed in the case of Pythian v Turner in 2013, where the death of the testator’s brother interfered with his mind when he was writing the will.
The majority of people who are allowed to challenge a will for testamentary capacity are children and spouses. You can file for reasonable financial provision if you are not allowed to challenge the will for unstable testamentary capacity.
To claim for the reasonable financial provision, you should prove to the court that you cohabited with the testator for more than two years. Another factor that can be considered is when you prove that you were legally adopted by the deceased without reasonable doubt.
Spouses that recently divorced the deceased and are not in another legal partnership or marriage can also file for this claim. In such cases, you should present the signatures of witnesses as proof in court. The court can determine the size of property that you will inherit.
Using a Probate Attorney to Challenge the Will
It is recommended that you gather enough evidence when presenting these cases. You should prove that the deceased was diagnosed with a mental ailment. Evidence of a doctor’s visit should be of help in such situations.