Creating a Last Will and Testament is a great way to ensure that your possessions and finances are distributed according to your wishes after you pass away. However, even if a Will is valid, signed, and witnessed there is still a chance that someone could contest it.
Individuals, such as beneficiaries, heirs, or other family members could contest your Will if:
- You failed to update your Will after a major life event
- You have more than one Will at the time of your passing
- Someone questions your mental state
- Someone suspects your Will has fraudulent terms or signs of undue influence
- Something in your Will is illegal
Failing to Update Your Will after a Major Life Event
Once you’ve created your Will, it’s tempting to 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 divorced
- Have a biological or adopted child
- Receive a large inheritance
- Obtain a significant amount of real estate
In general, you should create a new Will if a major change needs to be made to your existing one. If you only need to make small changes, use a Codicil.
Having More than One Will
It’s common for a person to create several Wills during the course of their lifetime due to various life events. If more than one Will is found when a person passes away, then generally courts use the most recent one to distribute their estate.
Most Wills also contain a statement that 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 honored.
With that being said, there are situations where your old Wills can cause confusion, which can lead to contestation. As an example, if you create a new Will or Codicil with a misspelled name, a court could deem the new Will as invalid. In this example, the next most recent 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 someone may contest your Will is the assertion that you lacked the mental capacity, or were not of sound mind, to create your Will in the first place.
Capacity refers to the fact that you prepared the Will while you were mentally healthy. Sound mind refers to the fact that you were able to understand the contents of your Will and use logic and reason to create it.
If you wait until you are close to passing away before you write your Will, or write it while you are experiencing a serious illness, it’s easier for someone to question the validity of your Will as your state of mind may have been altered when you wrote it.
It’s recommended that you prepare your Will when you are fit and healthy to reduce the chance that someone uses old age, mental incapacity, or illness to invalidate or contest your Will.
The Will May Contain Fraudulent Terms or Have Signs of Undue Influence
If there are signs that your Will is not genuine in some way, it is more likely that someone could contest it. For example, fraud or undue influence with regards to your Will could mean that:
- There is evidence someone has forged your signature so it needs to be evaluated for authenticity
- There is a possibility that someone has swapped out or removed pages, or made changes without authorization (such as items being crossed out, edited, or added without following the proper procedure)
- 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 (such as a beneficiary) manipulated you into giving them a larger their inheritance
Something in the Will Is Not Legal
If you include terms in your Will that are considered illegal in your state, part or all of your Will could be invalid.
As an example, jointly-held property (such as a matrimonial home) cannot be included in a Will. Generally, this restriction is because the property automatically goes to the surviving tenant, which in this case would be the husband or wife.
Also, things like life insurance or 401(k) plan assets can’t be included in your 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, if you’re a beneficiary or heir in someone’s Will, it’s important that you contest it 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 you are contesting.
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.