Keep Your Family’s Future Secure

What should you know before undertaking a will challenge?

On Behalf of | Mar 31, 2020 | Wills

A will challenge can be one of the most acrimonious kinds of lawsuits. In fact, it can tear your family apart. You therefore need to carefully consider whether or not you really want to mount one. Is all the strife really worth it? 

FindLaw also cautions that you must have valid legal reasons for challenging someone’s will. Simply believing that you failed to inherit as much as you think you should have from the deceased is insufficient. Instead, you generally must be able to produce clear and convincing evidence of one of the following: 

  • Lack of testamentary capacity on the part of the testator (now deceased) 
  • Undue influence on the testator by someone else 
  • Duress 
  • Fraud 
  • Technical flaws to the will itself 
  • Valid prior or superseding will 

Lack of testamentary capacity 

If the person whose will you challenge was elderly or ill at the time (s)he made his or her Last Will and Testament, you may be able to prove that (s)he did not have the necessary testamentary capacity to make it. Basically, testamentary capacity means that the will’s maker knew and understood the following: 

  • The fact that (s)he was, in fact, making his or her Last Will and Testament 
  • His or her general net worth and the major assets that contributed to it 
  • His or her immediate family members who the law presumed (s)he would name as heirs 
  • The nature, type and approximate value of each bequest (s)he made 
  • The way in which the various bequests would affect other family members 

Keep in mind that testamentary capacity differs from general mental capacity. You need not prove insanity or severely diminished mental ability in order to prove lack of testamentary capacity.