When someone writes a will, it’s their final chance to say how they want their money, property, and personal items handled after they pass away. The law treats the will as the last official word of the person who wrote it, called the testator.
After the testator dies, the law refers to them as the decedent. Because the testator is no longer around to explain what they meant, courts do their best to follow the written will exactly as it’s written.
If you’re thinking about whether a will might be challenged or if you’re worried about your own will being disputed later, it can help to talk to estate dispute attorneys near you. These lawyers know how to look at the situation and guide you through it, whether you’re writing your will or dealing with someone else’s.
Before anything in the will is carried out, it usually goes through a process in probate court. This is where a judge checks the will to make sure it’s real and valid. Most of the time, this happens without any problems. But sometimes, someone steps forward to challenge the will.
Here are some of the common reasons wills get challenged:
To make a valid will, a person must have what’s called testamentary capacity. This means the person must be mentally able to understand what they’re doing when they make the will.
They need to understand what property they own, who their heirs and beneficiaries are, and what the will is going to do. Adults are usually assumed to have this ability.
But if someone can prove the testator had dementia, was intoxicated, mentally ill, or otherwise not thinking clearly, the court might decide the person didn’t have the capacity to write a valid will.
Fraud means someone lied to the testator on purpose to change the terms of the will. For example, someone might lie about another family member or hide important information to trick the testator into changing their will.
Forgery is more direct. It means someone faked the testator’s signature or even created a completely fake will, pretending it came from the testator. If proven, any part of the will that’s fake gets removed.
Each time someone makes a new will, it’s supposed to replace the old one. But if the new will doesn’t clearly say that it cancels the previous one, people might argue over which one should count. This can get worse if the newer will is missing pages or seems incomplete.
That’s why it’s important for the testator to number each page, date and sign every page, and keep the will safe from tampering.
Courts usually go with the most recent version of the will as long as it appears complete and valid. But if the new will seems suspicious, the old one might still play a role.
If the testator remarried and had children from a previous relationship, the chances of a will being challenged go up. When a new spouse gets everything, the kids from the earlier relationship may feel left out and decide to challenge the will.
This is a common reason why wills end up in court. The law usually gives certain rights to spouses and children, so excluding them without explanation can lead to problems.
When a will splits things unevenly between children, especially if there’s been past tension between them, it can create conflict. Some might feel the distribution is unfair. Others might think someone else pressured the testator to make changes.
Appointing a neutral person as executor can help. A professional executor, or even a trusted outsider, can handle things without personal bias.
