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How to prevent or defend a contested will

On Behalf of | Apr 8, 2022 | Probate |

A diligent individual may leave behind a will with clear instructions for distributing an estate after death. Some in the family may not be happy with the document’s contents and challenge the expressed wishes.

Individuals and their inheritors should know how to prevent a will contest and defend a duly executed will.

Families should prepare well

A family member may prove a will is invalid by establishing that:

  • the testator (person who signs the will) did not properly execute the will;
  • someone coerced the testator with undue influence to create the will;
  • the testator lacked the mental capacity to execute the will; or
  • the will is fraudulent.

A person leaving an inheritance may prevent a will contest by properly executing the will with two independent witnesses. A no-contest clause can also avert a will contest. The clause stipulates that an heir who challenges the will and loses the case then forfeits what they would have received from the will.

The testator does well to video record the will signing, thus demonstrating the mental capacity to execute a will. A legal competency test can also remove potential challenges. A person can eliminate the appearance of undue influence by not involving any heir in drafting the will.

Heirs can defend a contest

If a family member challenges a will, the executor of the estate leads the defense of the will. The executor seeks to probate the will by contacting the witnesses and whoever helped draft the document. The defense also relies on any evidence of competency an executor supplies.

The best defense against a contested will is rock-solid preparation while executing a will. By compiling convincing evidence, heirs can fulfill a loved one’s wishes in case of a dispute.