If you practice in estate planning, you may have a potential client come to you seeking to contest a decedent’s Last Will and Testament. When considering whether to contest such a document on a client’s behalf, you should consider the telltale red flags that are present when a will is likely invalid. Doing so will help you to identify successful legal bases to challenge the disputed will. Below is a non-exhaustive list of the most frequently present issues regarding improperly drafted (or executed) wills.
● Changes near the end of life: When a decedent makes changes to his or her prior estate plans and executes a Last Will and Testament close to their death, a person seeking to challenge the will should consider whether the decedent had enough mental capacity to execute the will and whether they were susceptible to improper influence of others, causing the changes;
● Changes after new Power of Attorney: When someone takes over control of the decedent’s healthcare and finances and shortly thereafter a new will is drafted and signed that includes that person, there is a presumption that the will is invalid;
● Questionable mental capacity: If the Last Will and Testament was executed at a time when the decedent’s mental capacity was questionable due to an intervening event or medical condition, the will may be invalidated due to lack of mental capacity;
● Attorney becomes beneficiary: When the attorney of the decedent becomes a substantial beneficiary of the estate, there is a presumption that as a matter of the new will is invalid and the burden shifts to the proponent of the will to show the will is legal by way of clear and convincing evidence;
● Technical faults: A will can have issues with the way it was drafted, its content, and even how it was executed. This includes failing to meet the required formalities mandated under applicable statutes. Any of these issues can successfully invalidate a will;
● Drastic changes without apparent reason: When there is a significant change in a decedent’s estate plans without any intervening factors that lead to the changes, this can be a sign of undue influence, lack of mental capacity, or some other concerns and the will should be looked at closely.
While the above is not an exhaustive list, they are the most typical situations that are involved when a will is successfully challenged. If you have a potential client that is seeking to contest a Last Will and Testament, look for the above hallmark signs of invalidity in your quest to successfully challenge the document.
