Thursday, September 29, 2011

How to Prove the Validity of a Will

The process of "proving" or showing the validity of someone's will involves multiple considerations beyond just the will's existence. In some cases, where there is ample evidence that the will isn't consistent with the decedent's intentions, the will may be thrown out entirely.

While the loss of a loved one is a trying time for any family, sometimes situations arise wherein the contents of a loved one's will become the source of controversy. Perhaps you've found a will that no one in the family knew existed, or one that was written in the last few weeks before your loved one's death. Maybe the contents of the will are not exactly what the family might have expected. How will the court determine whether or not that will is valid? 

Mental Capacity

When determining whether a will is valid, one of the most important considerations is the decedent's mental capacity at the time the will was written. For a will to be considered valid, the individual who wrote it must have been of sound mind at the time it was drafted. If you believe that your loved one was not "himself" when he wrote his will, as in the case of dementia or Alzheimer's disease, you may be in a position to contest his will. You will need to show proof of your loved one's mental capacity (as in the form of a letter from his doctor). Undiagnosed conditions and anecdotal evidence will be more difficult for the court to accept.

Undue Influence

While more difficult to prove than straightforward mental capacity concerns, undue influence is another valid reason to contest a will. Sometimes, wills are contested because it's believed that someone unduly influenced the decedent to write his will in a certain way. This situation is less common than mental capacity cases, but can sometimes go hand in hand with a mental capacity issue. A close friend or family member may be suspected of taking advantage of the decedent's diminished mental capacity in order to pressure him to distribute his assets in a certain way.

Proper Execution

The act of putting one's final wishes on paper, as in a handwritten will that's kept at home, for example, doesn't ensure that those wishes will be followed after one's death. There is a process that must be followed in order to properly execute a will. This is part of the problem with DIY wills and downloadable templates. While the contents may be fine, if the will isn't properly executed – including all required signatures and notarization – there is a good chance that the court won't honor it.

Will Contests

Will contests are not only emotionally difficult for everyone involved, they can also be quite complex. If you truly believe that the contents of your loved one's will are not consistent with his intentions, you will need to hire a probate attorney to help you file a contest. In most states, there is a time limit, so you'll want to take action quickly. You will also want to find an attorney with both the skill and experience to handle your case.

This article is for informational purposes only. You should not rely on this article as a legal opinion on any specific facts or circumstances, and you should not act upon this information without seeking professional counsel. Publication of this article and your receipt of this article does not create an attorney-client relationship.

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