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What Is A ‘Dispute’ Or ‘Challenge’ To A Last Will and Testament?


Once a person passes away, they leave behind beneficiaries who will inherit their assets as designated in the person’s Last Will and Testament. Most of the time it is pretty straightforward and the Personal Representative (the person nominated in the Will to distribute the estate a/k/a an executor) will distribute the assets without issue. Unfortunately, there are sometimes disputes over the Will and its validity.

The four main types of Will contests are related to:

Did the person who made the Will (the testator) have testamentary capacity?
Were they unduly influenced to make the Will? 
Is it a valid document?
Was there a mistake or is the testator’s intent unclear?

I’m going to give the very brief summary and the basics of each claim.

Testamentary capacity
I often hear clients says that the Will cannot be valid because the person had Alzheimer’s so they lacked capacity.  The requirements for testamentary capacity are minimal and it is a much lower standard. The test generally requires that the testator was aware of:
The extent and value of their property;
The persons who are the natural beneficiaries;
The disposition he is making; and
How the Will distributes the property upon the testator’s death.

Undue Influence
Unlike testamentary capacity, undue influence does not have required elements. Instead the Court will look to eight potential factors that would indicate the testator was unduly influenced to make the Will:
• Did the alleged influencer make any fraudulent representations to the testator?
• Was the Will hastily executed?
• Was the execution concealed?
• Was the person who benefitted by the will also active in its procurement?
• Is the Will consistent with the testator’s prior declarations?
• Are the Will’s provisions reasonable and not unnatural in view of the testator’s attitudes, views and family?
• Was the testator susceptible to undue influence?
• Were the testator and the alleged influencer in a confidential relationship?
• Was it a valid document? 

This is a less common claim. On occasion someone will assert that the document is a forgery because it looks nothing like the testator’s signature.

Finally, sometimes the challenge is related to the lack of clarity of the testator’s intent or that there was a mistake. This can arise when there are competing documents that have opposite distribution provisions. Or, there is a drafting error in the documents such that the language is unclear as to what the testator wanted.

I have been involved in many Will contests and truthfully, it is always emotional and stressful. Putting together the evidence in a way that the Judge will be able to see the wrongdoing is difficult. We can assist with assessing the case, the potential costs versus recovery, and lessening the stress of resolving the disputes. I hope you found this helpful and if we can be of further assistance please give us a call or book an appointment on our website.

Written by: Jennifer Kupiszewski, Esq.

The lawyer disclaimer: We hope you find this informative, but it is not legal advice. You should consult your own attorney, who can review your specific situation and account for variations in state law and local practices. Laws and regulations are constantly changing, so the longer it has been since this was written, the greater the likelihood that the information might be out of date.

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