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I Think I Have a Will Contest

Nashville Blog 2016 March I Think I Have a Will Contest
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I Think I Have a Will Contest

Posted By David Whittaker, Attorney at Law || 2-Mar-2016

As an estate planning and probate attorney, I periodically get calls from people who want to contest the validity of a will. In response, I explain under which circumstances a will can be challenged.

While most wills are legally valid and not subject to challenge, that does not mean that all wills are authentic, legally sound, and created with the best intentions.

Below are the main legal grounds for contesting a will.

1. The will wasn’t drafted properly.
Each state has laws that clearly define how a will must be written and signed. If a will is not written properly, it can be null and void. For example, in Tennessee, a will must be signed in the presence of two or more witnesses, who must also sign it. If your loved one wrote a will and stored it in a safe or a safety deposit box, it may not be valid if it wasn’t signed by witnesses.

2) The testator lacked mental capacity when they signed the will.
With the numbers of seniors suffering from Alzheimer’s and dementia, this is an increasingly common complaint, a reason why I recommend drafting an estate plan while you are still in possession of all of your mental faculties.

When you’re arguing that the testator lacked testamentary capacity when they signed the will, you’re saying that he or she did not fully understand the nature and value of their assets, nor did they understand the legal effects of signing their will.

3) Testator was under “undue influence.”
As people age, they become physically and mentally vulnerable. When they are in the hands of a son or daughter, a sibling, or a close friend, they can succumb to undue influence. The caregiver may go so far as to physically abuse the testator, pay the estate planning attorney to draw up the will, and coerce the senior to sign the papers.

This may sound a bit dramatic, but it happens more often than people think. When it comes time to distribute the decedent’s assets to the heirs, they discover that a disproportionate amount is passed on to the caregiver, giving rise to a will contest.

4) A fraudulent will.
Some unscrupulous people will go great lengths to gain access to someone’s assets. When a will is created by fraud, it means that before the decedent passed away, they were tricked into signing a will.

In such a situation, the decedent may have been so unaware of what they were signing at the time that they were duped into believing they were signing something less significant, such as medical insurance paperwork or a power of attorney.

Since the testator isn’t around to speak, the witnesses must be found and questioned. If the testimony is insufficient, the will may be declared invalid because it wasn’t properly signed, not necessarily because of fraud.

Do you think you have a will contest on your hands? If so, contact me, Derek A. Adame, Attorney at Law to schedule a free consultation.

Categories: Will Contest, Estate Litigation

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David Whittaker, Attorney at Law

Call Today: (888) 492-4735

David Whittaker, Attorney at Law - Nashville Probate Attorney
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