If you are looking into can a will be contested, you have to see if there is a presence of at least one of the following will contest grounds:
To figure out can a will be contested based on mental incapacity, we need to prove that the testator did not understand one or more of the following:
Can a will be contested based on a lack of mental capacity would likely depend on whether the person who made the will suffered from a dementia disorder.
Changes in memory and behavior in older adults usually point to dementia, which can point to can a will be contested. The gradual cognitive decline caused by a degenerative condition eventually results in the loss of mental capacity required to make a will. The more dementia progresses, the harder it becomes to make decisions. Therefore, the later the stage of Dementia, the more likely it is for the will challenge to succeed.
Mental illness in and of itself does not mean that the decedent lacks capacity. Can a will be contested based on mental illness alone? Probably not. For a will contest to work, you will need to prove that mental illness played a role in the making of the will. Some examples of mental illness that can impact the capacity to make a will are:
Personality disorders are not indicative of a lack of capacity. Can a will be contested based on just a personality disorder? Very unlikely. But personality disorders can still make some difference in a can a will be contested. For example, if the testator had a “Cluster C” Dependent Personality Disorder, then they can be vulnerable to undue influence. We look to symptoms such as
Can a will be contested based on physical factors? Depends on whether those physical factors cause mental incapacity.
Weak Physical State – We can contest wills of decedents whose weak physical state adversely influenced their mental capacity.
Mind-Altering Pharmaceuticals – If the testator was taking mind-altering pharmaceuticals during the will execution, then his capacity to execute a will could be diminished. Sedatives, antipsychotics, and pain medications can push a mental state over the edge of capacity.
Drifting in and Out and Lucid Moments – Older people may drift in and out, sometimes lucid and sometimes not. If you are contesting the will, you will need to show that the decedent was not having any lucid moment. An attorney who made the will may testify that the testator had a lucid moment when he executed the will.
Some will contest lawyers and medical professionals hold the view that the lucid moment concept is out of date with the modern understanding of mental capacity. Their view is once the testator lost mental capacity, he does not get it back. However, at this time, our courts still consider lucid moments. This is an important factor to consider in determining can a will be contested.
While undue influence most often is not the subject of direct proof, it may be proved by circumstantial evidence. It can be shown by all the facts and circumstances surrounding the testator, the nature of the will, his family relations, the condition of his health and mind, his dependency upon and subjection to the control of the person supposed to have wielded the influences, the opportunity and disposition of the person to wield it, and the acts and declarations of such person.
Duress – To prove duress, you would have to show force and coercion. Duress is the use of force, false imprisonment, or threats to compel the testator to make the will a certain way. Duress usually comes hand in hand with other elder abuse. The abuser uses violence or the threat of violence to get a testator to change his or her will in the abuser’s favor.
How People Forge Wills – A forgery can either be of the signature or the document. Signature forgery is copying the signature, tracing it, or pasting it from a different document. Forgery of the document is replacing the pages or changing the text.
Handwriting Expert – We win forgery will contests by bringing a handwriting expert to present evidence of other handwriting samples of the deceased. The handwriting expert compares the handwriting on the will and testifies that it’s not a close enough match. The handwriting expert would also determine if the handwriting on the will belongs to someone else, such as the person benefiting from the will.
Fraud in Factum – One type of fraud is misleading the decedent about the will itself. Beneficiaries slip a will under a guise of a different document or mischaracterize what is in the will and have the testator unknowingly sign it.
Fraud in the Inducement – Another type of fraud is misleading the testator about circumstances outside of the will. They can be fed misinformation about friends and relatives or other things in their lives.
Psychopaths with narcissistic personalities are good at using manipulative tactics. Their favored ways of manipulating vulnerable seniors are
Opportunistic charlatans use those techniques to manipulate trusting older adults into leaving them an unfair share of the inheritance at the expense of the vulnerable person’s family and true wishes.
For a will to be valid, the people involved in the will execution need to follow ‘s formal requirements. If they did not correctly execute the will, we could successfully contest that will, leading to the will being overturned and invalidated by the Surrogate’s Court. In figuring out can a will be contested, you will need to be familiar with the formal requirements of will execution.
The will need to meet the formal requirements, which are as follows:
The people involved have to follow execution formalities. Problems can creep up, such as when the testator did not declare the document to be their will, or the witnesses are not there or not fully there. We can use those “hiccups” to litigate a successful will contest.
There is little place left for ceremony in the modern world. A will execution is one of the few exceptions, and it needs to be followed precisely in order for a will to be valid.
A testator can revoke a will by destroying it or crossing out the signature.
If no one can find the will, we presume that the testator revoked it, unless someone proves otherwise.
A testator can revoke a will by making a new one. The latest will always controls, unless overturned, in which case we revert to the will before that.
Can a will be contested based on revocation? Yes, if there is evidence of it.
When It Rains, it Pours – When figuring out can a will be contested, we often plead every possible ground for a will contest, hoping that we find one that sticks. If the decedent was not well enough to make a will, then he was probably vulnerable to being misinformed or pressured to make a Will.
It is true that in some situations where a will can be contested, an opportunity for a win can be spotted early on in the case. We can then proceed with a laser-sharp focus on a single issue. However, the most common strategy is still to plead every possible Will contest ground and see which one of them turns out to be more successful.
If you are are figuring out can a will be contested, contact an estate attorney. You will describe the circumstances of the making of the will and air out the case. An estate attorney can determine whether the proposed objections have merit. Estate attorneys usually request court-supervised depositions of the people involved before deciding whether it is worth your while to invest in a full-blown will contest.
We try to settle will contests before trial. If a settlement is not possible, then the sides will proceed to exchange more documents and information, and ultimately progress to trial. The judge or the will jury decide whether the will is valid.
When your lawyer is contesting a will, the court will decide at a trial whether the will is valid. The executor is not permitted to distribute the estate until after the trial. If the court finds the will to be invalid, the court will do one or more of the following:
Deadline Alert: | Once the will is admitted to probate, it will be too late to contest it. Act before the first hearing in the case. |
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When it comes to making wills, unscrupulous people can take advantage of vulnerable individuals. Unscrupulous relatives, caretakers and so-called “friends” with ulterior motives prey on people who are physically disabled, cognitively impaired, isolated, confused and depressed. A victim of will fraud often loves, relies on, and fully trusts the person who misleads them. If you believe that someone took advantage of your loved one, you may be able to overturn their so-called “will.” This is done with the help of a lawyer through a will contest in Surrogate’s Court.
A will is presumed to be valid unless proven otherwise. If a testator wants to set up their will a certain way, it’s their business. In most states, you can disinherit your relatives if you wish to do so.
You should never go into a will contest without trial counsel. Even though you now have all this information, you will still be at a great disadvantage because you don’t have the experience in contesting a will.
Attorney Albert Goodwin has been litigating will contests for over a decade. If you are trying to figure out if a will can be contested, you can call him at (212) 233-1233 or [email protected].