Dealing with the death of a loved one is never easy. Sometimes, just knowing that your parents or other family member left you that special heirloom can bring some comfort and can ease the burden of your loss. If you've recently learned that their will was changed prior to your death, and that heirloom will now be in the hands of a distant cousin, it can cause a lot of pain and heartache. If you're thinking of challenging the will, you'll be glad to know there are situations in which it may be found to be invalid. You'll need the help of an attorney, but here are some ways in which you can legally contest a will.
In order for a will to be valid, the person must be of sound mind to make decisions regarding their possessions. In essence, they must have the mental capacity to write the will. If you have reason to believe that your parent or other loved one was not of sound mind when they wrote the will, then you could have a case. The best way to go about proving this is by speaking with the person's physician, examining medical records, and talking with others who were close to that person at the time the will was written to find out what their everyday behavior was like.
For example, suppose your father was in a car accident that left him with severe brain damage. A distant cousin came along and convinced him to change his will, leaving everything to her. In that situation, you may be able to prove that your father wasn't mentally capable of making those changes.
Some people, particularly the elderly, are susceptible to others manipulating them into doing things they wouldn't ordinarily do under normal circumstances. This is known as "undue influence," and if you can show that a loved one was pressured into making changes to the will, you can contest it based on the undue influence principle.
Examples of this include any situation in which a beneficiary has an advantage over the person writing the will. For instance, a grandchild might threaten to expose a family secret if they don't leave them that summer lake house.
Forgery and Fraud
There are a couple of situations in which fraud can occur. In one, your family member may have been tricked into signing the will. Specifically, someone may have drawn up the will to their specifications and had the family member sign, telling them it is a completely different document. Or they might tell the person that they're signing a will but lie about what the will says.
In other instances, your loved one might be intentionally misinformed by someone else, causing them to distribute property in a way that they wouldn't if they had all the facts.
And lastly, wills can be forged by other parties, making the signature and the document itself null and void.
Every state has specific laws regarding wills, from how many people are required to witness and sign the document all the way to how those last wishes can be communicated.
As an example, in some states, like Georgia, a will is not valid if it's handwritten. This is called a "holographic" will, and they are only permitted in a handful of states. Conversely, wills in Arizona are only valid if they're handwritten.
Also, in Illinois, two witnesses must sign the will, but they cannot also be beneficiaries in the will. And any changes to the will must be made following the same laws.
In most states, contesting a will requires you to file a claim with the court. So having an estate planning services attorney to navigate you through the process can make things much easier on you.Share