Morris & Morris, A Law Corporation - Estate Planning

Why should someone challenge a will?

A will gives the final say on what happens to someone's estate. It splits up money among heirs, instructs them on how to divide physical property and turns over assets to the next generation. Some wills are very simple, essentially just telling their heirs what assets exist and giving them a chance to divide things up as they see fit, while others offer far more detail and really lay out a plan that the heirs must follow.

Generally speaking, this process happens without issue. However, there are cases where people decide to challenge a will. They feel that it should not have the final say and that the family needs a different resolution. Why would someone do this? Below are a few potential reasons:

1. The person did not have the mental capacity to create the will

This claim can be made for a few reasons, but perhaps the most common is when the elderly person has dementia or a similar issue. If they made the will while they had the degenerative brain disease, one could argue that they did not understand what they were doing, that they made clear errors or that they even forgot about assets and heirs through no fault of their own.

In some cases, this claim also relates to drug and alcohol use. If someone was under the influence, even of a legal medication, then their will may not stand.

2. Someone else created a fake will

If the will is a forgery, then it clearly does not reflect the person's wishes and desires for their estate. An heir may create a fake will that leaves more of the assets to them than they would have gotten through the actual estate plan. This is fraud, it is illegal and the fake will can get thrown out.

3. The elderly person suffered from undue influence

While it's uncommon for someone to make a blatantly fake document, they could attempt to influence the elderly person and convince them to change the will. This sometimes happens with manipulative family members, for instance, who may even lie about siblings and other heirs to turn the elderly person against them. It can also happen if a caregiver threatens the elderly person and forces them to change the will.

A sort of mix of the above two reasons is when someone simply creates a fake or altered will and then tricks the elderly person into signing. They may tell them it's a necessary health care document, for instance, and secure a falsified will with a real signature.

Challenging the will

These are just three reasons, but they show you why will contests do happen. Make sure you know your rights if this happens in your family.

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