A will is the key component of any estate plan. This legal document provides precise instructions on how assets are to be divided upon the testator’s death. It can also designate guardians for minor children and much more.
However, a will only carries out its functions if it has been drafted appropriately and properly executed. Failure to do either of these things could result in a will contest. Here are some of the most common reasons for will contests:
1. Lack of testamentary capacity
A testator must be a legal adult. This means aged 18 or over. The testator must also be of sound mind or “possess testamentary capacity.”
There are several reasons why a testator may lack testamentary capacity. For example, they may be an elderly individual with dementia and other types of memory loss. Or, the testator may have suffered a brain injury. Lack of testamentary capacity is a common ground for will contests because the will must reflect the true wishes of the testator.
2. Undue influence
As stated, a will must reflect the true wishes of the testator. While estate planning can be discussed with family members and friends, they should never pressure the testator to draft specific clauses in a will. This is called undue influence.
Undue influence can be asserted by multiple parties, but it is often a close friend, family member or caregiver. For example, if a previously estranged family member reappears and is suddenly included in the will, this would give rise to suspicions of undue influence.
Will contests can be complex. To avoid them or deal with them as they arise, it is always best to seek legal guidance.
