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Should you challenge a will?

On Behalf of | Oct 20, 2023 | Estate Planning |

A will is a legal document that instructs a testator’s last wishes. Testators include the names of their beneficiaries, amount or percentages of their assets for distribution and appoint executors in their wills. When the testator passes away, the executor is responsible for submitting the will to probate court, paying debts, contacting heirs and distributing assets. 

While the process may seem straightforward, it’s often very complicated. The probate process can take several months to over a year. However, an heir, beneficiary, family member or friend may notice some discrepancies with a will. These issues may raise the question if someone should challenge a will. Here are a few reasons a will might be challenged:

There are multiple wills

People often update their wills. An updated will can include or exclude assets and beneficiaries. When a new will is made, the testator should revoke the old will, which is often done by physically destroying it. If this isn’t done, then there may be confusion and disputes about which will is the latest and most authentic.

Undue influence in a will

Wills are often made to benefit others. A testator may be coerced or persuaded into making a will that benefits a sole party. When undue influence is used to force a testator into making a will, then there may be reason to challenge the decision.

Technical Defects in a will

There can be issues of “due execution” of a will which can render it invalid or subject to a contest if the formal legal formalities are not followed.  Of course, there can also be outright forgery as well.

Lack of testamentary capacity

In order for a will to be probated the court must be convinced that the testator had testamentary capacity – that they knew their natural heirs and that they were signing a will.  Someone can be mentally incapacitated in various ways and still be able to properly execute a will.  Generally there are two or three witnesses to execution who sign affidavits as to the procedures followed and the testamentary capacity of the testator.

An executor failed their fiduciary duty

A testator can choose anyone who is above the legal age limit as their executor. However, not everyone is fit to be an executor. An executor may fail to fulfill their fiduciary obligations. As a result, the testator’s estate may not be distributed as instructed, assets may go missing or be withheld and an estate may go into disrepair. Someone might contest a will if an executor fails to fulfill their duties.

When an issue with a will leads to a delay in probate, missing assets or questionable beneficiaries, then an individual may need to learn about their legal rights to challenge a will.