Many people create a Will to help their family and loved ones manage their estate after they pass. This is intended to be a benefit to those left behind, as it may be quite challenging to decide how to divide assets and personal belongings after the death of a loved one. Having the decedent’s Will to rely on can take a lot of the pressure off. A Will intends to ensure that the decedent’s property is split according to their preferences. Hence, courts and judges prefer to adhere to the Will as closely as possible to ensure that those wishes are carried out. However, there are circumstances in which a Will may be contested.
What Is a Will?
A Will is a set of instructions that specifies how one’s wealth, assets, and debts should be dispersed after their passing. It comprises, among other things, one’s money, deeds, stocks, and assets. The decedent must also appoint an executor of the estate, who will disperse the deceased’s belongings.
Even though it may appear to be cut and dry, there may be complications along the way. Wills and trusts, for example, can be challenged. There’s a possibility that someone unfairly influenced the deceased to leave someone out of their Will. An individual might file a dispute to have the Will declared invalid. This is referred to as a Will contest.
A Will contest is a legal challenge to the validity of an estate plan. Beneficiaries of a deceased person’s estate sometimes disagree with their final stated wishes. The dissatisfied person is usually the one who feels they have not been given what they deserve. If the contest is successful, the Will is deemed invalid, and the most recent previous iteration of the Will will be used. If there is no prior Will, the intestacy laws of succession will take effect.
Who Has the Authority to Make a Will?
If a person is 18 years old and of sound mental capacity, they can legally create a Will. It requires the individual to identify their closest living relatives, determine what they own, and comprehend what they are doing in the estate-planning process.
Even if a person has Alzheimer’s, dementia, or another mental disease, they are legally allowed to be testators as long as they have the competence to identify family and appoint a beneficiary to the things they possess. In addition, minors who serve in the military or are married have the legal capacity to write a Will.
What Are the Grounds for a Will Contest?
Not everyone has the legal authority to dispute a Will. One must have allocated a share of the estate. There are several primary reasons for contesting a Will. Please keep in mind that some of these instances may overlap. In such instances, one basis may be more difficult to establish than the other.
According to Utah law, the testator must be of sound mind while drafting and executing their Will. The Will is only valid if the testator is:
1. Adequate Testamentary Capacity
- aware that he or she is making a Will and is mindful of the consequences of the Will;
- aware of the actual value of their estate, which he or she intends to distribute among the named beneficiaries;
- aware of the effects of including some beneficiaries in the Will while leaving others out;
- free of any medical condition that might cause them to make irrational decisions.
Only people over the age of 18 have the legal competence to make a Will. Minors are unable to make a valid Will because they are legally considered to lack the mental ability to do so. However, minors who serve in the military or are married may write a Will in some territories. Testamentary capacity is assumed in adults. When an adult’s testamentary capacity is challenged in court, it is typically because the adult is senile, is clinically insane, has dimentia, was under the influence of a substance when creating their Will, or, in some other manner lacks the mental capacity to make a Will.
2. Undue Influence
You may have reason to believe that the testator was improperly influenced when writing their Will. If you have evidence of a wrongdoer who negatively influenced the testator, you have the option of contesting the Will in court. When the testator’s Will is created under duress, it is considered to have been created under undue influence. However, this classification excludes threats that aren’t serious, verbal abuse, or mild pestering. The testator must be shown to have become subject to significant pressure, with the offender subverting their free will. But what if a person persuades a testator to change their mind about something? In this case, the offender does not directly force a testator to modify his or her Will but influences their thinking, affecting their future Will. It’s worth noting that challenging a Will on this point is difficult. You must prove that a person forced the testator to divide their estate in the manner they did.
3. Lack of Understanding and Approval
The testator must comprehend and approve the provisions of the Will. You can contest the Will if you have reason to believe the testator truly did not understand the Will’s provisions at the time of writing. You might also contest the Will if you believe it was drafted under dubious conditions. Consider a case where the individual who prepared the Will has set aside a sizable portion of the estate for themselves Without the testator’s knowledge or approval. In this case, there may be grounds for a contest.
4. Wills That Are Fraudulent or Fake
Fraud may take many different forms. If any part of the deceased’s Will is fraudulent, the entire Will may be deemed invalid, and the most recent previous version of the Will will be used according to the rules of testacy. Again, if there is no previous Will, then the rules of intestacy will come into play.
5. Construction and Rectification Claims
There is a possibility that the individual who drafted the Will made a mistake. This could be due to a misunderstanding of the testator’s intentions. If you find any errors, you have the right to challenge the Will based on professional negligence. In this scenario, you can also ask the court to reconstruct the Will if its terms are unclear.
6. Lack of Correct Execution
For a Will to be legally binding, it must fulfill several legal conditions. Some of the requirements apply to the testator, while others apply to the Will itself. If a Will fails to meet any of these criteria, it lacks proper execution and can be legally challenged. The following is a list of some of the legal conditions that the Will must meet.
- It must be identified as a Will by the testator.
- The testator should revoke all prior Wills and codicils.
- The testator’s Will must be in writing.
- The testator must sign the Will. Or, if the testator cannot sign, he or she may order someone else to sign on their behalf, as long as the testator is present at the Will signing.
- Two people must witness the Will. When the testator or his or her agent signs the Will, these witnesses should be present.
- When minor children are involved, the testator must appoint a guardian.
- The testator must provide a formula for dividing the estate.
- The testator must be over the age of eighteen (18).
The testator can revoke a legal Will while they are still alive. It can happen in a variety of ways. The most apparent is altering or adding to the contents of a Will before he or she submits it. If the testator is still mentally competent in doing so, this is feasible. The modification does not entail erasing information from the original Will and replacing it. The testator must adhere to all legal processes outlined in the original Will.
Another alternative is to rewrite the Will entirely. The testator must sign every page of the old Will “revoked” in this scenario. The revoked Will should be maintained so that it is not mistaken for a lost Will in the future. Another technique includes destroying all copies of the old Will in the presence of one’s lawyer and signing the new one into effect.
What Are the Procedures to Contest a Will?
You must submit a special pleading in the probate court to oppose a probate petition if you want to challenge a Will. The executor and any remaining heirs will receive an invitation for a proceeding as a result of this. There is no right to a jury trial. Instead, the court will be the fact-finder. The burden of proof is on the contestant. Just like in any other court case, witnesses will be called in and cross-examined.
In many other jurisdictions, the validity of the pleading is debatable. For example, a contestant may try to avoid identifying the pleading as a “Will contest” to invalidate a no-contest clause in the Will. Under these clauses, anyone who attempts to dispute the Will cannot receive any of the estate’s assets. A no-contest clause is intended to deter anyone from challenging the Will in the first place.
On the other hand, no-contest clauses are unenforceable in Utah unless used against those who dispute the Will without a good reason. For instance, in “frivolous” contests, the contestant is potentially merely trying to obtain more of the estate.
When the Will contest is successful, the original Will is then declared invalid. And if the decedent is still testate, the last Will before the one just discarded is used. If no Will is finalized, intestacy laws governing succession and inheritance distribution will apply.
Find An Experienced Lawyer in St George
Dealing with death and planning for what comes after can be difficult and uncomfortable, but it doesn’t have to be.
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