You might have gone through the difficulty of a family or loved one dying, the funeral, wake and mourning. However, to find out that a will has left you without any saving grace while other family members did can also be heartbreaking. You might want to challenge the will but have no idea where to start.
Firstly, it is extremely difficult to challenge a will after the author of the will has passed away. Usually, all the court can do is fulfill their written wishes. Sometimes spouses are the most successful in fighting the will, and one of the routes is through arguing their spouse was unduly influenced or lacked the mental capacity to execute their wishes.
Lack of mental capacity
When writing a will, it often comes later on in life, when the mind is affected by diseases such as dementia or Alzheimer’s. They could have even been under the influence of prescription drugs. However, to prove this in court is difficult as you must provide evidence that the person creating the will did not understand what they had, who it was going to, and the concept of distribution of property.
You might argue that your loved one was tricked into writing the will the wrong way – “undue influence” as it’s referred to in the court. Alternatively, the will could have been forged. Again, this is difficult to prove after the death and will have been finalized, and any counter action will naturally start on the back foot.
A newer will
If an outdated will is executed, and a newer version arises or is discovered, this more recent version trumps the former example. Finding clearly dated copies in this instance would be vital to any challenge.
Two witnesses must be present when the writer of the will signs and dates this crucial document. In California, at least two people need to be there at the signing and must understand that it is the “testator’s” (legal term for the person signing) will.
Typed, written or oral?
Also, note California does not accept oral wills, and handwritten wills are okay, but come with special requirements. Consult a legal expert if you need to know more.
Despite it being difficult to challenge a will, you’re not alone. UK statistics suggest that the amount of people entering a dispute after a death in the family is on a steep rise. Making a will is important. Making sure it is fair to you and your loved ones is even more important. If you or your family have lost out through one of the above manners, there might be legal recourse to challenge the decision.