Your last will and testament is the final document outlining what you want done with your remains and everything that you owned while still alive. For the most part, you are free to leave your estate to whomsoever you wish, but if your beneficiaries are unhappy with how you have spread out those assets, they can by law contest or challenge the will in a court of law.
Such parties, however, will have to prove to the court either of two things: that there is something wrong with the will i.e. its format, making it null and void or that the deceased was under duress or not in full control of his faculties.
The Advantage of having a Will
The advantage of making a will is that you get the chance to see to it taking care of your assets and that your loved ones are well provided for in the event that you pass on. Without a will, it will be up to the courts to settle the matter, taking a lot of time and money, all of which are avoidable by writing out a will.
For instance, if you didn’t marry your significant other, when settling the matter in court, he or she will have no legal claim over your estate, no matter how close you are or how long you’ve been together. The rules of intestacy do not recognize anything other than legal marriages.
A Will can Still be Contested
If as a beneficiary of a deceased person’s estate, you feel that the drafting of the will occurred in dubious circumstances or there is something else amiss, you can always contest that will. Another instance would be in a situation where there are two wills and there is doubt as to which reflects the latter wishes of the deceased.
There is a different procedure for how to contest a will depending on the actual reason for the claim. It is a long and winded process, taking a lot of time and money, as well as causing emotional distress to the conflicting parties for the duration of the proceedings. If the court proves a will invalid, the next valid will shall take precedence, otherwise the rules of intestacy will apply for the division of the estate.
When should you Contest a Will?
A beneficiary stands a chance of overthrowing a will in two situations. You cannot contest a will just because you feel the inheritance left to you was insufficient. There must be legal ground, and these can sometimes be difficult to prove, especially since the most knowledgeable person on the matter is no longer living. These situations are:
- Presence of undue influence – you have to prove that there was manipulation, coercion (physical or psychological torture) or deception by another party, affecting the making out of the will. The court must feel that the testator felt forced to do something against his free will.
- Lack of testamentary capacity – you must demonstrate that at the time the will was written out, the person making the will was not in full control of his mental process, therefore making it invalid – no matter who did the actual drafting of the will.
If you have strong reason to believe either of the above circumstances did occur at the time of writing, you have grounds to take the matter before a court of law.
David Willis is an experienced attorney who has represented thousands of clients in court.For more information on proving grounds for invalid wills or on how to contest a will, contact us by clicking the link.
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30 JulReal Estate
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