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The most common reasons for challenging a will

Ideally, a written will expresses the true wishes of a loved one for the distribution of any assets in his or her estate. Your loving parent or grandparent may have desired to provide you with something special after death. Perhaps it was a generous amount of money or property. Maybe it was a trinket that had enormous sentimental value.

Whatever the bequest, it must have been shocking to realize that, in the end, you were not included in the will. Maybe that gift went to another family member who you knew never really got along with your loved one. Maybe it even went to someone who was not in the family at all.

Beyond your own hurt feelings, you probably feel compelled to defend the wishes of your loved one. One way to do that is to contest the will. People may contest a will for one of two reasons.

1. Excessive influence over your loved one

If you believe someone manipulated an elderly loved one into changing his or her will, you may have grounds to challenge the will. Undue influence over a vulnerable person is one of the most common reasons wills are contested, but this is not easy to prove.

Some of the signs that someone unduly influenced your loved one include:

  • If your loved one would not to talk about changes in his or her estate plan
  • If the other person seemed to have dominance or control over your loved one
  • If the other person refused to leave the room when your loved one was being advised by his or her lawyer
  • If your loved one suddenly changed attorneys from a trusted, family lawyer
  • If the will is very different from the intentions you know your loved one had for his or her estate

Exercising undue influence over a person means depriving that person of the freedom to make his or her own decisions about the estate. If your attorney is able to prove that someone manipulated your loved one into changing his or her will, there is a good chance the court will void at least part of the will.

2. Diminished mental capacity

The other common reason for challenging a will is if you believe your loved one was not mentally able to make the decisions necessary for estate planning. However, even if your loved one's mental capacity was declining due to dementia or other medical reasons, he or she may have had moments of lucidity.

The court may determine that your loved one was mentally fit enough to make the will if, at the time the will was made, your loved one:

  • Had a general understanding of his or her assets and their values
  • Knew the people he or she planned to make beneficiaries
  • Knew who would be excluded from the will

Sometimes when people want to make a will but are declining in health, they make an appointment with a doctor for a checkup - including a test of mental capacity - immediately before signing the will to protect it from disputes.

Accepting the challenge

Challenging a will is seldom easy. Courts are more inclined to respect a written document since the writer is not able to defend it. Since anyone can claim to know the wishes of a deceased person, it may take substantial evidence to persuade the court to reject a will.

However, an attorney can examine your claim and guide you in the right direction. If it seems as if your loved one was unduly influenced or not lucid enough to make logical decisions about his or her estate, your attorney will work to protect your loved one's wishes and reclaim the inheritance you deserve.

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