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Proper estate planning allows you to make informed decisions, get your affairs in order, and make things easier for your family after you're gone. Making a will is a good way to ensure that if you die, your children are cared for and your property is distributed as you wish. In states that do allow them, the probate court must be satisfied that the document is actually in the deceased person's handwriting and was intended to serve as a will. In states that don't allow holographic wills, these wills are simply invalid. (Some states also require that they be dated.)īecause there are no witnesses, holographic wills are easier to challenge than standard wills (with witness signatures). These documents are called " holographic wills" and must be written and signed entirely in the handwriting of the person making the will. In most states, the witnesses can't be people who are named to inherit property under the will.Ībout half the states allow handwritten, unwitnessed wills to be admitted to probate. Claiming the Will Was Improperly ExecutedĪ will must be dated and signed in the presence of at least two adult witnesses who also sign the will. Typically, these claims go along with allegations of undue influence and lack of mental capacity. You could also challenge a will if you believe that a signature was forged-either the will-maker's or a witness's. For example, you might claim that a will-maker was tricked into signing a document-that they didn't know they were signing a new will or that they were misled about the changes made to the will. Of course, you can contest a will based on fraud or forgery. Challenging the Will Based on Fraud or Forgery For instance, a caregiver might use undue influence to convince a woman who's always been close to her family to cut all of her children and grandchildren out of her will, leaving everything to the caregiver instead. In other words, the will accomplishes the wrongdoer's goals and not the goals of the will-maker. You can get a will declared invalid if you prove in court that it was obtained by " undue influence." That usually involves someone in a position of trust-like a caregiver or adult child-manipulating a vulnerable person to leave all, or most, of their property to the manipulator instead of to the people who would have been expected to receive it. 2011.) Will Contests Based on Undue Influence In one case challenging the capacity of a will-maker, the court ruled that the opinion of an attorney who barely knew the will-maker but saw him the day the will was signed was more relevant than the testimony of a doctor who had formed an opinion only from medical records.
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a doctor who saw the will-maker the week before, or.In a lawsuit over mental capacity, the testimony of people who saw the will-maker at or very near the time the will was signed is typically very important.
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The court will look at the will-maker's mental capacity at the time they made the will-so if the will-maker made the will during a period of lucidity, the will is usually valid. the general purpose of a will and the consequences of making one.Usually, a court faced with a question of mental capacity will ask whether the will-maker understood they were making a will, as well as key information such as: Forgetfulness or even the inability to recognize friends doesn't, by itself, prove incapacity. The mental ability needed to create a valid will (called " testamentary capacity") isn't a tough standard. Contesting a Will Over Mental Capacityįor your will to be valid, you must have been of "sound mind" when the will was made. But there are some arguments that can work when you want to get a will thrown out. If a will appears valid and it was properly witnessed, it's often difficult to convince the court to rule it invalid. But if someone makes a will that doesn't fulfill certain legal requirements, or if the will-maker wasn't of sound mind, a would-be heir or beneficiary can challenge it in probate court after the will-maker's death.
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Only about one will in a hundred is challenged in court.