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2 grounds for contesting a will

On Behalf of | Sep 15, 2023 | Estate Planning

When a testator (someone who writes a will) dies, their named executor will take the will to probate. If the probate court approves the executor’s appointment and determines the will is valid, the executor will give a copy of the will and a notice of probate of will to beneficiaries and interested parties (anyone who would be affected by the will’s outcome).

Upon reading the will, any interested party, including the executor, can contest it. Here are two grounds for contesting a will:

1. Lack of testamentary capacity

A testator should be an adult and of sound mind. Absent these factors, it can be considered they lacked testamentary capacity. For example, if at the time of signing the will, the testator had a mental issue, such as dementia, insanity, intoxication or any form of incapacity.

A testator should understand the nature and consequences of their will, who their heirs are, and what they are giving through the will.

If an interested party can get medical documents or other evidence to prove the testator lacked testamentary capacity when making or updating a will, they can have grounds for a will contest.

Note that suffering from a mental illness does not automatically mean a testator lacks the required mental capacity.

2. Undue influence

A will should reflect a testator’s s true wishes. If anyone influences their decisions using trickery or threats, undue influence occurs – the free will and judgment of the testator are tampered with. This means the will is not authentic.

An existing will that is considerably different from the previous one and last-minute changes may be signs of undue influence.

If you believe your loved one’s will does not reflect their wishes, consider contesting it. With legal help, you can protect their legacy and your inheritance.