Creating a will is the best way to ensure that your wishes are honored after your passing. However, there are certain circumstances that could allow for a will to be changed. It is typically very difficult for this to happen, as the courts will likely adhere strictly to the will, but there are a few valid reasons that could sway their decision.
Some of the more common reasons for changing a will include:
- Insufficient mental capacity of the testator
- A newer will trumps the will being executed
- Fraudulent wills, or wills created under manipulative influence
- Formality failures
Insufficient Mental Capacity
Adults 18 and older are considered to have the mental capacity to create a will. If a will is contested on the basis that the testator (the person who wrote the will) did not have this capacity, it is usually on the basis that they suffered from senility, dementia, insanity, or were under the influence of a substance. To prove this, the challenger must show that the testator did not understand what they were putting into their will or the consequences that it would have, specifically as it relates to the amount and value of the property and exactly who it will provide for.
Newer Wills Take Precedence over Older Wills
If more than one version of a will exists for the same person, the newer will takes precedence. If an older will is the version currently being executed, a court is most likely to side with the newer will if someone challenges it.
Fraudulence, Forgery, and Undue Influence
A will can be challenged if it can be proven that the will is fraudulent, a forgery, or the product of undue influence. This usually means that the free will of a testator is compromised by the manipulation of a person who is trying to trick them into leaving them most or all of their property.
Formality Failures
In order for a will to be valid, it must meet certain requirements as outlined by their state of residence. These vary from state to state. It can involve that the will be signed by two to three witnesses and be notarized, or a state may recognize oral or handwritten wills in certain circumstances. Self-proving wills which have been signed and notarized in the presence of witnesses are typically much more likely to be protected from being challenged on the basis of formality.
If a challenge to a will is successful, it can be voided in part or in its entirety. If this happens, the court will proceed as if the will had never existed, and the property of the deceased will be distributed as the court sees fit. It is important to start creating a will sooner rather than later to make sure that all of your affairs are in order and to reduce any errors or misunderstandings that could lead to your will being invalidated.
To ensure that your wishes are honored after your passing and protect the future of the ones you love, procure the services of a trusted Nassau County elder law attorney to create a solid will.
Let us help – contact The Virdone Law Firm, P.C. today for a no-cost consultation!