When a Will May Not be the Way

by Nathaniel H. Wadsworth on Jan. 09, 2020

Estate Estate Planning Lawsuit & Dispute  Litigation Estate  Wills & Probate 

Summary: A will or trust is a valuable estate planning tool, but in some situations they may not necessarily be valid or enforceable.

We read in the Bible the parable of a rich man who had the problem of figuring out what to do with all of the goods he had accumulated. He determined to build larger barns to store all that he had. However, God told the man that very night that his soul would be taken, thus leaving the question “Whose shall those things be, which thou hast provided?”

The Lord’s parable was not necessarily intended to remind people of the importance of estate planning. Still, it is interesting that two thousand years later, men and women are still faced with that same question—“whose shall those things be?”—at the passing of a loved one who leaves property behind. The answer is usually answered by a will or trust prepared before death. Or, if no will exists, then the law determines how remaining property is to be divided among surviving family members. But even in those cases where a will purports to direct what happens with a deceased person’s assets, there can still be valid disputes as to whether the will should be followed.

There is often a question of whether the person who signed the will (the testator) had the mental capacity to sign (that is, whether she really understood what she was doing). Even if the person did have the capacity, there may also be the question of whether the testator was improperly influenced to sign the will. These challenges are often raised by a family member who may have been left out of the will, despite having a close relationship with the testator.

If a court determines that the testator did not have capacity or was unduly influenced, then the will is not considered valid. When determining the question of undue influence, a court will consider several factors, such as whether:  

 - the alleged influencer made false representations to the testator;

- the signing of the will was the product of hasty action;

- the will was kept hidden from others;

- the person who benefits from the will was active in having the will prepared and signed;

- the will was consistent with prior statements of the testator;

- the will was reasonable;

- the testator was susceptible to undue influence; and,

- the testator and the beneficiary were in a confidential relationship.

Where serious questions arise as to whether a will in fact represents the desires of the testator, it is worth meeting with a knowledgeable attorney to get proper guidance. If you are facing such issues, you should discuss them with an experienced attorney. 

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