What to know before challenging a will
Whether challenging a will is the right course of action for you will depend on several case-specific factors. The facts of each case must be applied to the requirements below.
When to consider challenging a will? Wills require all of the following to be valid:
- Due Execution: The will must have been signed by the deceased in front of at least two witnesses who also sign the will. If a witness is also a beneficiary, they may not be entitled to receive any assets under the will. Handwritten wills are treated differently. If a will is not properly signed, this can be the easiest way path to successfully challenging a will.
- Testamentary Capacity: The deceased must have been of sound mind, memory, and understanding when he or she signed the will. Medical conditions such as Alzheimer’s Disease, acquired brain damage or brain injury, and Dementia will make it more difficult to prove that the deceased had capacity at the time a will was signed. Residing in palliative care or a nursing home may be helpful evidence to demonstrate a lack of capacity.
- Knowledge and Approval: The deceased must have had knowledge of and approved the contents of the will. Suspicious circumstances will be relevant to proving this requirement.
- No Undue Influence: Undue influence means more than just persuasion, but it is not necessary to show physical violence, confinement, or threat.
- No Estate Fraud: If a court finds that a signature was forged on a will, the will is invalid. A court will look at the surrounding circumstances to determine whether a signature was forged. A court will not accept a false will.