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Grounds for Contesting a Will
The distribution of assets through a will is an important event for most people. If a person is unsatisfied with a will, they must provide valid reasons why the will must be altered or cancelled. Whether you are the person making the will or the person contesting it, it is important to understand the different grounds upon which a will may be contested.
Here are some common reasons why a will may be validly contested:
- Lack testamentary capacity: The will may be contested if the creator of the will was not of "testamentary capacity"- this means that they must generally be of sound mind and of legal age (usually 18 years old)
- Problems with the will itself: If the will was created under conditions of fraud, or undue influence (i.e., the drafter was pressured into making a will), the will is not valid. Mistakes may also render the will ineffective
- Existence of another valid will: If a will that was previously enacted is still valid, it may negate the creation of a newer one.
- Tortious Interference: This is not really a will contest per se, but rather a legal suit that is filed against a third party that may be interfering with a person's property interest in a will
Before making a will contest, the person challenging the will must also establish that they have standing. This means that they are able to show that they are directly interested in the will. Standing is usually satisfied if the person is named in the will.
Including a "No Contest" Clause
Some jurisdictions allow the creator of a will to include a "no-contest" clause. This is a provision stating that persons named in the will may not challenge the will's provisions at all. If the jurisdiction allows no-contest clauses, they will be strictly construed, meaning that they will be interpreted as close as possible to the way the clause written in the will.
Points for Consideration
Before challenging the will, be sure to double check that there are no errors or omitted information in the will. Many disputes arise due to a provision that was wrongly read. Will contests can be very sensitive matters due to the timing and the close familial relationships that are typically involved.