Creating a Last Will and Testament is a great way to ensure that your estate is distributed or taken care of according to your wishes after you pass away. However, even if a will is recognized as valid and has been properly signed and witnessed, there is still a chance that it could be contested.
This post outlines some common reasons wills can be contested and tips about how to avoid any issues.
Failing to Update Your Will after a Major Life Event
Once you’ve finished the process of creating your will, it’s tempting to retire it to a safe place and have it out of sight and mind.
However, you should review your will when major life events occur. For example, you should re-evaluate the terms of your will if you:
- Get married
- Get a divorce
- Have a biological or adopted child
- Receive a large inheritance
- Obtain a significant amount of real estate
In general, a new will should be created any time an in-depth change needs to be made to the existing will that could impact the overall structure of the document, or if using a Codicil (a document used to make small changes to a will) risks making the will unclear.
Having More than One Will
It’s common for several wills to be created during the course of a person’s lifetime due to various life events. If more than one will is found when a person passes away, then generally the most recent one would be used.
Most wills also contain a statement which expresses that all previous wills and codicils are overruled by the most current document. Even if the newest will does not explicitly revoke the previous one, the newest document is most likely the one that will be observed for the simple reason that it is the most recent.
With that being said, there are situations where old wills can cause confusion, which can lead to contestation. As an example, if a new will is created or a codicil is used to change an existing will, but the new or modified will has a spelling mistake (such as a name spelled wrong) then there is the potential that the new will would be deemed invalid and the old will could be recognized in place of the new.
In order to avoid contestation issues where there are multiple versions of a will, you can simply destroy any previous versions of the document after creating a new one.
The Mental State of the Person Who Created the Will is Questioned
A common reason for contesting a will is the assertion that the testator (the person who created the will) lacked the mental capacity, or was not of sound mind, to create the will in the first place.
Capacity refers to the fact that you have prepared the will while you are mentally healthy, whereas sound mind means that you are able to understand the contents of your will and used logic and reason to create it.
If you wait until you are close to passing away before you write a will, or write it while you are experiencing a serious illness, it’s easier for the validity of the will to be questioned as your state of mind may have been altered when you wrote it.
It is recommended that you prepare your will when you are fit and healthy to reduce the chance that old age, mental incapacity, or illness could be used as a way to invalidate or contest your will.
The Will May Contain Fraudulent Terms or Has Signs of Undue Influence
If there are signs that your will is not genuine in some way, it is more likely that it will be contested. For example, fraud or undue influence with regards to a will could mean that:
- There is evidence that a signature has been forged, and it needs to be evaluated to determine whether it’s authentic or not.
- There is a possibility that pages have been swapped out, changed without authorization (such as items being crossed out, edited, or added without following the proper procedure), or removed from the will.
- When you created or updated your will, you were given the wrong information, and as a result a particular clause or request is invalid.
- There is evidence that somebody associated with the will (such as a beneficiary) may have acted dishonestly, such as a caregiver or family member influencing or manipulating you into giving them a large sum of money or valuable property.
Something in the Will Is Not Legal
If you include terms in your will that are considered illegal in your state, part of or the entirety of your will may be considered invalid.
As an example, jointly-held property (such as a matrimonial home) cannot be included in a will, because the property generally automatically goes to the surviving tenant, which in this case would be the husband or wife.
Things like life insurance or 401(k) plan assets can also not be included in a will, because these documents already include a section where you assign a beneficiary.
If you are unsure whether you can include something in your will, consider consulting a local estate lawyer.
Is There a Time Limit for Contesting a Will?
The time limit for contesting a will varies between states, so it is important that the will is contested as soon as possible if there is a valid reason. The amount of time that can pass before a will is not contestable also depends on what is being contested.
As an example, you may have more time to contest a will for fraud than you would for simply making a claim against the estate.
Make Sure Your Will Is Valid
Remember that a will is a living document, which means that it is normal for changes to be made over the course of a person’s lifetime. Updating your will can make it easier to execute, and helps to avoid conflict and stress between family members. Avoiding contestation of your will is generally not a difficult task as long as you make sure you observe your state’s laws, and practice responsibility with regards to the contents of your will.
What steps have you taken to minimize the chance that your will is contested?