A Last Will and Testament can be challenged through a will contest, also known as a caveat proceeding.
In an ideal world, wills and estate plans are created by people who are sound of mind and body, just as the familiar legal phrase describes. The best way to avoid a will contest is to have a well-written will, prepared by a qualified estate planning attorney who can help avoid a legal contest. However, there are times when this is not the case, says The Huntsville Item in the article “Legal Corner: Will contests while rare are messy.”
In a will contest, the person challenging the will may believe that it does not represent the true intent of the testator to pass the estate to the people he wanted.
A will must be written in the correct form and executed according to the law in order to be valid. This is why it is necessary to work with an estate planning attorney to create a will. A person may try to do it on their own, typing it out, downloading a form, or copying a form, but because the law is very strict about the form and execution, many of these do-it-yourself wills end up being deemed invalid by the courts.
When the will is not valid, the laws of intestate succession are applied to the person’s estate. This is rarely in accordance with the person’s wishes, but at that point, it’s too late.
To make a will, the person must have “testamentary capacity.” That means that he or she knows who their family is, what they are doing, what their estate includes, and who the recipients of the estate will be. They also must not have been subject to undue influence. That means that the person making the will is so controlled and dominated by another person that they were not able to make the will that they wanted.
When the sad day comes that a loved one passes, the family grieves. Each member will deal with the loss in their own way. For some people, the intense level of emotions can bring about conflicts. Sometimes, these are the result of old battles that were never resolved. Sibling rivalry that’s been simmering for decades can emerge.
One of the goals of a properly prepared will is to prevent any family fights after a loved one has passed.
Studies have found that the struggle over mom’s necklace or dad’s watch is often not about the material item itself but over the symbolic meaning of those items. When families fight over inheritances, it’s rarely because of the actual item or the money.
As the family’s older member, you want to do anything you can to avoid fracturing the family after you’ve gone.
Unless you take the steps to create a will and a strong estate plan, your loved ones could be entrenched in a long inheritance conflict that lasts years and consumes more resources than anyone can spare. However, with careful planning, you can avoid inheritance conflicts. After all, estate planning is more for those you love than for you.
Rely on the skill and knowledge of an experienced estate planning attorney and leave your family intact. With a properly signed and planned will, a will contest, or caveat proceeding, is much less likely to occur, and if it does, it will be more likely to fail.
Reference: The Huntsville Item (May 26, 2019) “Legal Corner: Will contests while rare are messy”