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Is your will vulnerable to challenges

by | Nov 22, 2018 | Uncategorized

If you have invested the time and effort to come up with an estate plan, you are doing better than the many people who keep putting off the task. However, it is also important to review your plan and consider whether any parts of it could use some fine-tuning.

When a will appears to comply with legal requirements for validity, courts typically do not dig further unless someone challenges the will. Whether technical defects actually exist, a challenge is more likely to arise when an interested party is unhappy with the will’s content.

Likelihood of a challenge

A testator has no legal obligation to make everyone happy or treat everyone fairly. You may dispose of your property as you see fit. However, if you know some of your provisions will prove unpopular, it can be wise to take extra precautions to guard against potential challenges.

Technical requirements

Often, problems with witnesses or signatures can arise when a testator makes a will in a hurry, making it inconvenient or impractical to be careful about details. This is just one reason to make and a review your will now, whether you think it is likely to become necessary soon.

Undue influence

Two other common grounds for contesting a will include allegations of undue influence or lack of testamentary capacity. Undue influence can occur when a beneficiary exerts a high level of pressure that may include threats, fraud or psychological manipulation to achieve a testamentary provision in his or her favor. If you want to make a provision benefitting one person to the rest of the family or leave a substantial amount to an outsider, you may want to document the reasons for your decision and make it clear the provision in question reflects your own wishes.

Testamentary capacity

Testamentary capacity generally means the mental ability to understand what property one owns, one’s familial and social relationships, and the consequences of leaving property to someone in a will. Some circumstances are likely to raise the issue of capacity, although they do not, on their own, constitute full proof of incapacity. These include suffering from cognitive impairment, a court finding of incapacity in a different legal area and evidence of irrational conduct in general.