Creating and Contesting a Will - How To Contest 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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Information and term glossary

For your convenience we have included some general will information and a glossary on common will terminology. 

Tips for Preparing Creating and Contesting a Will

  1. The content of your will isn’t set in stone. No matter what turns of events you deal with throughout your life, be it marriage, separation, loss of a family member, or health issues, you can always make changes to the last will and testament you drafted and signed. How you need to do that is based on the legislation of each state.
  2. Some states enforce an inheritance tax. This is something you need to look at before preparing Creating and Contesting a Will to prevent any legal penalties from the Internal Revenue Service in the future. Just how much beneficiaries are obliged to pay out in property or inheritance tax is defined by the state you live in.
  3. Your expectations laid out in the paperwork might be contested. While putting together Creating and Contesting a Will, take into account the following case: if the beneficiaries that you refer to in your legal will feel that you disinherited them or assume that you've been tricked into signing it, they might contest it with the court. Other commonly popular grounds for contesting a will are an improperly carried out document or the incapacitation of the testator.
  4. Check intestacy laws before drafting a will. Intestacy signifies passing away without leaving a will. This is when the court takes over inheritance issues after your passing away. If the distribution of assets specified by your local laws meets your needs, then you can certainly postpone or not make it at all. Nevertheless, to avoid any risks of a family feud or major issues, it's highly advised to make a will. You can do it and get the needed Creating and Contesting a Will online utilizing US Legal Forms, one of the most expanded libraries of expertly drafted and frequently refreshed state-specific legal paperwork.