Three reasons a will may face challenges

Three reasons a will may face challenges

| Aug 17, 2020 | Estate Planning |

A will is an important part of a New York resident’s estate plan. It is a legal device that allows an individual to evaluate their property and decide how and to whom they wish it to pass after their death. When a person does not have a will, their property that is not subject to distribution based on other financial and legal devices may be passed to family members based on state laws of intestacy.

However, just having a will is not always enough for it to stand as an authoritative document in a person’s estate plan. Wills can be challenged and if those challenges are valid, they can overturn otherwise seemingly strong wills. This post will address several common grounds on which wills are challenged, but readers are cautioned that this post does not provide any legal advice.

Reason #1: The testator does not possess testamentary capacity

In order to create a valid will a person generally must be an adult and of sound mind. Being of sound mind is a standard that requires a person to understand what they are accomplishing through their will. When a person suffers from a cognitive disorder like dementia, or suffers from other conditions that affect their ability to understand, they may lack testamentary capacity and their will may not be valid.

Reason #2: A prior will exists

Individuals can only have one valid will, and if they want to replace an existing will then they must do so without allowing their prior will to continue to exist. Ensuring that wills are dated properly can help overcome the confusion of multiple wills, but when more than one will exists a challenge may be presented to prevent one from becoming controlling over a decedent’s estate.

Reason #3: The will contains a technical flaw

Wills are legal documents and must conform to the rules set forth by the state. If a will is deficient in its execution, it may not stand up to challenges during probate. One common problem that wills can face is insufficient witness signatures that attest to the state of mind and signature of testators.

A will challenge can draw out the administration of decedent’s probate. An estate planning attorney can support families who are coping with will challenges and other estate planning questions.