It's very unusual for a will to be contested. The vast majority of wills go through probate without any problems at all. However, there are times when a beneficiary or would-be beneficiary can challenge the terms of a will or the circumstances under which it was created and have it thrown out entirely. Below are some of the grounds you might use to legally challenge a will.
The Age of the Will Maker
While this problem almost never rises, the person creating the will has to be either at least 18 years old or living in a state that allows people younger than this to make a will under certain circumstances. These circumstances might include things like being married, serving in the military or being considered "emancipated."
The Will Maker's Mental State
As the cliché goes, the will maker has to have been of sound mind when the will was written. This isn't as big a loophole as it might seem, since the courts don't demand a great deal when it comes to the question of demonstrating mental competence. They usually only require the following for the person making the will:
The individual understood what a will is and that he or she was writing one.
The individual understood which people he or she might normally be expected to provide for (children or a spouse).
The individual knew what the estate consisted of (with regard to property and assets) and was able to decide who these assets and properties should be distributed to.
The truth is, mere forgetfulness or eccentricity isn't sufficient for a court to invalidate a will. An individual has to be virtually mentally incapacitated before a court will decide they were not competent to have made a will.
Evidence of Undue Influence or Fraud
If a court decides that a will was produced because of forgery, fraud or undue influence, it can decide to invalidate it. In most instances, this kind of situation usually involves some trusted individual (such as an adult child or caregiver) manipulating the will maker (usually this is an elderly or sickly individual) into leaving him or her the majority or even all of the estate.
The Contents of the Will
There are also certain formal requirements that every state has for the creation of a will. Virtually all states will require that a will:
Clearly states that the person who wrote the will is the same person whose will it is.
Includes actual provisions, such as a clause that leaves property to a particular individual or that appoints a guardian for the will maker's children.
Appoints an executor to be responsible for ensuring that the terms of the will are carried out. However, in most states the court will appoint an executor if one is not named and will then proceed to enforce the will.
For more information, contact Fitzpatrick, Skemp & Associates LLC or a similar firm.