The Will Challenge and the 5 Elements of a Valid Will
Whether a will challenge 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 a will challenge? Wills require all of the following elements 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 success in a will challenge.
- 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. This is the most common ground for a will challenge.
- 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.
You may need a litigation lawyer
For a will to be valid, it must have all of the element identified above. If you think that a will lacks one or more of the elements above, you should contact an estate litigation lawyer to discuss whether a will challenge is appropriate. You should certainly contact an estate litigation lawyer if you would have inherited under a prior will or on intestacy and you suspect that a will may be invalid. You will have to contact a lawyer if a party has filed a Notice of Objection against a will that you have tried to probate as a Notice of Objection is the first step in a will challenge.
Free consultations and results before fees on a will challenge
Katzman Estate Law offers free consultations for will challenges and will dispute issues. On your first call, you will have an honest conversation with an estate litigation lawyer about whether you may be successful with a will challenge or in defending a will.
Katzman Estate Law is willing to invest in its clients and its will challenge cases. In addition to offering hourly rates, Katzman Estate Law offers contingency fee arrangements. In a contingency fee arrangement, a client only pays their lawyer when he or she receives money from a successful resolution of their case.
