The death of a parent is a traumatic event for families, and emotions can sometimes boil over when it comes time for a parent’s will to be probated. Children who feel they were not given a fair share of their parent’s estate may try contesting the will in court. It can be upsetting to other family members when this happens, but in reality, the vast majority of challenges to wills are not successful. Courts are reluctant to overturn wills unless there is sufficient cause, and there are strict guidelines that must be met when challenging a will.
Here are the main issues involved in will challenges:
- Mental capacity. If it can be proven that the testator (the individual who created the document) had a diminished mental capacity because of senility, insanity, medication, or some other reason, the will may be declared invalid. It must be shown that the testator did not understand the consequences of the will’s provisions.
- Fraud, forgery, or undue influence. In this case, the challenging party must prove that the testator was influenced or tricked into creating the will, and that it does not reflect their true wishes.
- Multiple wills. If there is a second or third will, or even more, the court will follow the newest will and throw out all the others.
- Lack of witnesses. Most states require that a will must be signed in the presence of two adult witnesses, and some even require three witnesses. There are some exceptions for handwritten wills, but they must be written 100 percent in the testator’s handwriting to be considered valid.
Contesting a will is a complicated legal procedure. We work with clients to ensure that their Wills are properly executed and to develop plans that avoid probate. If you need expert advice in this area, contact Grissom Law at 678-781-9230.
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