Creating and Contesting a Will
Contesting a will is a difficult and often expensive legal battle to deal with, so the better prepared you are, the easier it will be to handle contesting a will. If you are considering contesting a will or seeking to avoid a situation where others are contesting a will made by yourself or another, knowing the basis for contesting a will can be helpful. Therefore, we will explain some of the most common grounds used by parties when contesting a will below.
Legal Grounds for Contesting a Will
- 1. Undue influence. This is a claim used when contesting a will that argues another person exercised such control over the testator that free will was lacking when the will document was made. This has to be of such a nature to overcome the mind of the testator (will maker), and will be a subjective judgment based on the facts in each situation when contesting a will.
- 2. Lack of testamentary capacity. Making this claim when contesting a will asserts that the testator wasn't in his or her right mind in order to be able to properly identify the heirs and/or property of the estate. For example, a situation for contesting a will may be created when a person creates or makes changes to a will after getting dementia, or in the final stages of death and under the influence of medication. Those contesting a will on this basis may use medical expert testimony and records to prove that the testator was incapacitated. This is only one example of why it's important not to delay creating a will if you want to minimize the chances of others contesting a will.
- 3. Fraud. An example of contesting a will on this basis could be when a person makes a false claim about an intended heir's criminal wrongdoing to prevent an inheritance, or makes a knowingly false promise to induce someone to leave a bequest in the will.
- 4. Duress. In order to be successful in proving duress as a defense when contesting a will, the duress must be sufficient to overpower the free will of the testator. For example, when contesting a will on the basis of duress, a threat of harm is often required to have been made to the testator in order to forcing the making or changing of a will.
- 5. Not properly executed. Contesting a will is possible when the legal requirements for signing aren't met, such as only having one witness when two are required.
Preventing Others From Contesting a Will
To prevent others from contesting a will you make, you can include a no contest clause, also referred to as an in terrorem clause. An in terrorem clause basically says that anyone contesting a will you make after you die will be automatically disinherited. US Legal Forms offers last will forms which can be easily modified in Word to include a clause to prevent contesting a will. You can also download an agreement between individuals for not contesting a will.
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For your convenience we have included some general will information and a glossary on common will terminology.