4 Grounds for Contesting a Will

March 1, 2016

contesting a willYou are probably not surprised that contesting a will is very common. Regardless of the desire to eliminate family disputes about who should receive what, they are often inevitable. You can take certain steps to avoid them and your estate planning attorney can help.

Legal Basis for Contesting a Will

There are generally four different legal bases for challenging the validity of a will.  The four grounds include:

  • The will was not properly signed
  • There was a lack of testamentary capacity
  • There was undue influence in executing the will
  • The will was acquired through fraud

Each of these grounds can be difficult to prove.  Contesting a will can also be a very expensive court process, yet that fact does not discourage everyone.

No. 1 – The Will Was Not Properly Signed

State law regarding wills in Nevada govern the specific requirements for a valid will.  The document must be signed by the testator (person creating the will) and by two witnesses who must be present during the execution of the will and each signature.  Many will contests challenge the authenticity of the signatures.  The validity of the will may also be challenged when a required signature is absent.

No. 2 – There Was a Lack of Testamentary Capacity

A will cannot be validly executed if the testator lacks the required testamentary capacity. In Nevada, the term "incapacity," which would prevent a testator from executing a valid will, is defined as follows:

“Incapacitated person” means a person who is impaired by reason of mental illness, mental deficiency, advanced age, disease, weakness of mind or any other cause except minority, to the extent of lacking sufficient understanding or capacity to make or communicate responsible decisions.

Even if in cases of temporary incapacity, it is necessary to establish that the testator was not incapacitated at the time the will was executed. Proving incapacity can be difficult to do in most cases and pursuing this avenue of contesting a will is often expensive.

No. 3 – The Testator Was Subjected to Undue Influence or Coercion

Regrettably, there are many situations where it is suspected that undue influence or coercion have been used to coerce a testator into either creating the will or including certain provisions in the will.  This is a common challenge when there is evidence that the testator may have been emotionally vulnerable in some way. Indeed, as we age it is possible to lose some mental faculties, which may then be exploited by someone close to us. As with showing incapacity, proving undue coercion can be hard.

No. 4 - The Will Was Procured by Fraud

Deception is a major issue in creating wills. Like undue coercion, fraud in the creation of a will is also an issue.  A will may be challenged by evidence that the testator may have been tricked into signing the will or including terms in the will that the testator did not intend.  For example, a testator may be given a document that is represented to them as a deed or power of attorney, when in fact it is a will.  The problem with proving fraud is that the primary witness, the testator, is no longer around to testify.  The witnesses to the will become extremely important.

Self-Proved Wills

If you want to be sure that your family won't waste time contesting a will after your death, you might want to consider creating what is called a "self-proved" will.  This specific type of will, recognized in the state of Nevada, takes the guesswork out of will authenticity.  You simply sign your will in the presence of a notary.  Your witnesses sign in front of a notary, as well. Additionally, you and your witnesses need to sign a notarized affidavit that sets out who you are and confirms the fact that each of you knew you were signing the will. This affidavit is always kept as a separate document.

The greatest benefit in using a self-proving Will, in addition to preventing contests, is that it speeds up the probate process. The probate court does not need to obtain testimony from the witnesses in order to prove the Will's validity, which makes the process faster.

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