Probate Litigation Attorney Steve Prager discusses three top reasons a will should be contested.
Concerned About the Validity of Your Loved One’s Will?
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When Should We Contest a Will?
There are three main reasons to contest a will:
- the will was executed invalidly
- undue influence is suspected
- lack of testamentary capacity
A will must be typed with two competent witnesses. Generally, that means people above the age of 18 who were present either when the will was signed or when it was acknowledged by the person drafting the will. In Colorado, you can also draft a will holographically, which means handwritten. A holographic will is valid even without witnesses, as long as the material provisions of the will are in the testator’s handwriting.
If those formalities are not observed, that would be justification to contest a will. You may say that it wasn’t validly written, or that the provisions are incorrect.
Undue influence occurs when a third party pressures somebody to draft a will in a certain way. That can happen with someone like a caretaker. It can even happen, unfortunately, with family members.
Sometimes a person is pushed to draft a will that they otherwise wouldn’t have drafted to provide for inheritances that they otherwise wouldn’t have considered. If you suspect that there has been undue influence on somebody’s will, that’s a reason to contact a probate attorney.
Lack of Testamentary Capacity
This is related to undue influence, but it’s not quite the same. When somebody lacks testamentary capacity to make a will, it means that they don’t know that they’re drafting a will, or that they don’t know what is in their estate. They don’t understand what they’re doing. This is more of a situation where a family suspects dementia or some kind of mental issue that precludes them from making a will validly.
Call a Probate Attorney
Those are really the main issues that attorneys see come up when someone wants to contest a will. And if you suspect any of those, it’s really appropriate to talk to a probate attorney.