Only one percent of wills that go through the probate process are contested, and it is rare that they are voided entirely. A will is seen as the last voice of the deceased so the courts are usually strict in following them. However, when one is contested, there are several reasons it could be a valid challenge. It is usually the spouse or a family member who claims the will should be deemed invalid. If the grounds are found acceptable by the courts, the whole will or parts of it can be voided. Our probate lawyer in Cary NC is here to talk more about contesting wills.
Ways a Will Can Be Contested | Probate Lawyer Cary NC
The first and most understandable reason to deem a will invalid is proving that when it was written, the deceased was mentally incapacitated, either due to illness or old age. If he or she lacked the mental clarity to make logical and reasonable decisions, then the contents of the will may not reflect the true wishes of the deceased. In some cases, the person may have been under the influence of drugs or alcohol, which can also impair his or her judgment.
In order to challenge the will, the person contesting it must prove the testator, or person who created the will, did not understand the consequences of what was outlined. It can include not realizing the extent and value of the property and who should be provided for in accordance to the will.
Someone challenging the will may think the person writing the will was influenced by someone seeking to benefit from it. The elderly, even if they are of sound mind, can be vulnerable and trusting, especially when it is a family member suggesting changes to the will. This is called “undue influence.” It is closely related to fraud and forgery because it creates the same problem – someone else had input into the will other than the person creating it. Again, people who are trusting and think the influencer is looking out for his or her best interests will make changes and sign documents thinking they are doing the right thing. Undue influence, forgery and fraud are often all cited together when someone challenges a will because they are closely related.
A will that was not properly executed can also be contested. A will needs to be signed by two witnesses in most states who are not people listed as heirs in the will. It should also be signed by the testator and dated. If it was not carried out properly, the will can be voided. Some states allow handwritten wills that were not signed by witnesses, but they are easy to challenge so they are not recommended. Some people have it notarized with an affidavit with a sworn statement saying that the will is authentic; however it is not required.
If there is a second, newer will, the original can be trumped. When someone is knowingly creating a new will, it is often advised to state in the new will that it should void the previous will. It is important to date the will for this reason so that it is obvious which is the most recent. States vary on how they handle multiple wills, but a lawyer can check on those laws and advise on the best way to approach it.
Eldreth Law Firm PC | Probate Lawyer in Cary NC
If you don’t have an estate plan in place or haven’t reviewed yours in several years, now might be the best time to start. Our probate lawyer in Cary NC is here to help you get your estate planning in order and ready should you pass in an untimely manner or become incapacitated at some point. It’s better to be safe than sorry when it comes to an estate plan. Contact our office.
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