Do you suspect that the will of your parent or other elderly loved one is invalid? Contesting a will is a complicated process because the level of mental capacity required by the law is not high. Only the capability of an individual to make decisions on behalf of him or herself in a rational manner is necessary. It is not the duty of the court to decide whether the contents of a will are foolish, peculiar or eccentric.
Your attorney might explain the complications of establishing a basis for contesting a will — primarily because you were likely not present when the will was signed. For that reason, it is difficult to know the mental capacity of your loved one at the time when he or she signed a will. Your loved ones’ mental capacity might have varied at different times of the day due to fatigue or the effects of medication.
The legal standards for competency to sign a will vary
The law requires different levels of competency for the signing of various documents such as contracts, wills, appointing guardians and providing informed consent for medical treatment. The capacity to sign a will can only be determined medically and not legally. In cases in which a lawsuit claims a testator was not competent when he or she signed a will, the court will look at medical testimony before making a decision.
The level of capacity required by law to make a will is low. A will is considered legally valid as long as the testator — at the time of signing the will — understands the nature of the property in the will, knows that he or she is signing a will and whom his or her natural heirs would be. According to the law, a stroke victim, or a person living with Alzheimer’s, may still be capable of signing a will. Speech or physical impairment, and even occasional mental impairment do not necessarily remove a person’s capacity to make a will.
Grounds for challenging validity of a will
To avoid problems, some people take precautions if the testator is not of sound health. They have additional witnesses present, and even record interviews with witnesses before the will is signed. Two potential grounds for challenging a will’s validity include the following:
- Undue influence — If there is evidence that your loved one signed the will under duress, or was coerced into signing a will in which the wishes of another person replaced his or hers, it may invalidate the will. Similarly, if a person influences the testator to disinherit one heir in favor of another, it may invalidate the will.
- Fraud – Any form of fraud during the creation of a will can result in its invalidation if proven. An example is a grandparent asking a child or grandchild to help with drafting a will because he or she struggles to read. That person can make fraudulent entries to benefit him or herself, and the testator will trustfully sign the document without knowledge of fraud.
These are but some of the many ways in which undue influence and fraud can get testators to change their wills. Experienced estate planning attorneys can assist individuals with drafting valid wills. An attorney can also help you to proceed with challenging your loved ones will if you suspect it was signed under duress or without legal capacity. A knowledgeable attorney can examine your suspicions and assess your allegations to determine the viability of a legal challenge.