Challenging a Will is a difficult task. In most cases, it is passed through probate with no issues because these are considered the voice of testators (by whom a Will is written) by the courts.
Since the person is no longer able to speak about their wishes on property distribution, the courts stick to what is said or described in a Will in pretty much all cases.
If a person is not benefited from the Will and has no interest to gain from it, he or she can challenge it, however, it is not an easy feat. The most successful challengers to Wills are spouses and the most successful reasons are the lack of testamentary capacity in the person.
To help you know more about the reasons for challenging a Will, we have outlined the grounds on which you can contest a Will below:
1. If the testator lacks testamentary capacity
As per the law, only adults (more than 18 years) have the testamentary capacity to create a Will and minors lacks this capacity. So, if one is challenging a Will on the basis of the mental capacity of the testator, he/she has to show that the person did not understand the importance of making a Will and was not really aware of the consequences of it. According to the law and orders, a testator must be aware of the following things while creating it:
- The price and value of all his/her property.
- Who are the beneficiaries of the Will?
- How things will be deciding while distributing property.
- The disposition made by the them
If you think and can prove that the testator was lacking one or more of these capacities, you can challenge the Will in the court.
2. In the case of forgery, fraud and undue influence
If a Will is procured by a person by forgery, fraud or undue influence then you can certainly challenge it in the court. It means the fraud person has manipulated the testator in such a way to leave all his or her property to him or her. But here, you need to be sure that you have proper and enough evidence to prove the fraud and forgery.
3. If a new Will trumps the existing one
If the Will that the executor is showing in the court is outdated then the newer Will can triumph over this. Typically, if a new Will is created, the older one should be destroyed immediately. Many people even state in their new Will that this one is intended to triumph over the old one.
This way, you can easily remove the chances of conflict as well as confusion. It goes without saying that a Will is an important document. No matter whether you are getting it done from a lawyer or making it yourself, you should be very careful while making it. And if you are making it yourself, read a lot about how to make a will at home to avoid any problems in the future.
The court is always obliged to fulfil the wishes of the testator mentioned in the Will. And if there is more than one Will, then they will follow the newer and latest one.
4. A lack of sufficient witnesses
The testator must sign the hard copy of the Will in the presence of at least two adults. Here the number of the adults may differ from one state to another according to their laws and rules. No matter how many witnesses you need for your will, they should not be a beneficiary in your Will.
Again there is no rule of thumb for it because most courts allow handwritten and unwitnessed Wills as well. Such Wills are called holographic Wills and must be written and signed entirely in the testator’s handwriting and must have a date as well.
In the case of a holographic Will, you have to convince the court that the Will is created by the testator only and has his/her handwriting in it.
No doubt a will is very beneficial to the testator’s family, but there are certain times when you should give a second look to it or amend it if requires to. Trust us, this way your spouse will not have to challenge it in the court.