A will is meant to be used the same as instructions being given by the person who wrote the will, referred to as the testator. Wills are typically upheld simply because the person who wrote it is no longer here to express their wishes and concerns. Although almost all wills go through probate without incident, there are times when a will becomes challenged. But when is the right time to challenge a will?
The rule behind challenging a will is that you can either challenge the validity of the entire thing, or only a part of it. Having part of a will challenged will only remove the one specific part. But if the entire will is voided, then the state takes over and proceeds as if it is an intestate situation, or if the will never existed in the first place. That’s why challenging a will can be tricky.
One reason that a will can be challenged is if you suspect fraud, forgery or undue influence when the will was established. In order to warrant this action the testator would have to be manipulated into signing over a majority, if not all of the assets of the estate to the person suspected of the manipulating. You would also have to prove that the testator was helpless against the manipulator and could not reason with them.
If a will is an older one that you can prove has been updated, then the older one could be voided. This is why if a new will is created, it should note that it automatically voids the previous one. Dates can also accomplish the same thing. When a court sees two wills of differing dates, they will normally go with the most recent one.
Although wills should be typed and witnessed by a minimum of two people, there are instances where they can be handwritten. Called a “holographic” will, these are easier to challenge since they typically do not have witnesses. If a will is holographic, the entire will has to be handwritten in order for it to even be considered as valid.
There are times when a testator’s mental capacity is questioned. The testator will likely be suffering from some sort of disabling mental condition that can cause concern as to their competency in preparing their will. Challenging a will on these grounds means providing proof that the testator did not have the appropriate mental clarity to create the will and it’s contents.
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