Why Might A Will Be Declared Invalid?
The vast majority of wills are probated and executed with no issue. However, you may have heard that unhappy family members sometimes contest the wills of loved ones in court. You may wonder how people can fight over a document that should be pretty clear on its face. This article looks at some of the common reasons that a will, or some provisions of it, may be declared invalid or may not be upheld by the court.
Formalities Not Met
For a will to be valid there needs to be certain specific formalities that must be met regarding the testator’s signature, witnesses, witness signatures, and notaries. The testator is the person who the will is for. In Florida, the will must be signed and notarized by the testator and also two disinterested witnesses must see the testator sign the will. The two witnesses must also sign the will. “Disinterested” witness means someone who is not named in the will and will not get anything when the testator dies.
These formalities are quite specific and not doing things exactly as the statute dictates is one big reason that wills are challenged in court. If a will is successfully challenged on the basis of the formalities not being met then the court will decide how to dispose of the property. Will formalities underscore the importance of working with a skilled estate planning attorney to make your will.
Lack of Testamentary Capacity
Another common reason that wills are challenged and thrown out is due to lack of testamentary capacity. A will is a type of contract and whenever someone is entering into a contract, for the contract to be valid the person needs to know and understand the consequences of his or her actions. In order for the will to be valid the testator must understand what he or she is doing and what the consequences of that are. The burden will be on the person contesting the will to prove a lack of testamentary capacity.
Undue influence is when someone has put the testator under such extreme pressure or duress that he or she has been influenced into making or changing a will and would have not have made the changes otherwise. As people age they tend to be more prone to being impermissibly influenced by others and undue influence is something that family members should watch out for.
There are a few different ways that a will can be thrown out for fraud. One situation is when the will itself was actually drafted and signed by someone who is not the testator. Another way is for the testator to actually sign a document where he or she does not know it is his or her will and thinks it is something else. Finally, someone can tell the testator untruths that influence the testator to change his or her will.
The Villages Estate Planning Attorneys
To help make sure that you have a valid will that the court will uphold, you need the assistance of knowledgeable estate planning attorneys. Our experienced estate planning attorneys at Millhorn Elder Law Planning Group located in the Villages can help you to draft a will that will stand up to any challenges.