Legal Tips & Resources

After you die, it is possible that one of your heirs, or someone who thinks that he or she should be an heir, could challenge your will. However, challenging a will is usually very difficult. The court generally regards the will as your voice and takes it as the ultimate authority unless there is good reason to believe that it is inauthentic or invalid. Only about 1% of wills are ever challenged.

However, there are circumstances that can arise and cast doubt on the validity of a will. The following are a few common examples.

1. The Will Does Not Comply With State Requirements

This type of problem may occur when you initially make a will in one state and then move to another. The requirements for a valid will vary by state, so if you do not update your will after you move, it may not be in compliance even if it was valid in the state where you wrote it.

2. There Is More Than One Will

It may sometimes be necessary to cancel one will entirely and write out a new one. The latest will should take precedence, but if there is confusion about which will was drafted first, it may result in a challenge.

3. The Will Contains Illegal Provisions

You cannot put provisions in your will that would violate the law if they were fulfilled. Most people will not do this intentionally, but sometimes the laws change between the time that you wrote your will and the time of your death. If this occurs, a provision that was legal when you wrote your will may no longer be. This could invalidate the whole thing.

4. The Will Was Obtained by Forgery or Fraud

If someone created a fake will and tried to pass it off as yours, a challenge is likely if discovered. Similarly, if someone were to trick you into signing a will that did not reflect your wishes, this would be fraud and the will would likely be challenged and invalidated.

5. You Lacked Testamentary Capacity or Were Under Undue Influence

A general requirement to write a valid will is a sound mind, i.e., the capacity to make knowledgeable decisions. If you received a diagnosis of dementia, insanity, or senility, your decision-making ability could be called into question. Similarly, someone could manipulate you to create or change a will that to his or her benefit. This is called undue influence.

An estate planning attorney, can help you create a will that is more likely to pass without complication through the probate process by avoiding these potential issues. Contact our office for more information.