It is very unusual for a will to be contested. However, if potential beneficiaries and heirs believe that the maker of the will was not of sound mind at the time that the will was constructed, the contents of a will can be challenged. A majority of wills will go through probate court without being contested, but if the will does not meet legal requirements and would-be heirs point this out in probate court, there can be delays that can benefit the person who is contesting. If you want to create a will that meets requirements and will not lead to family disputes, you should be aware of the grounds on which family can contest your will. Here is a basic guide on making a fully legal will, so that your deserving heirs receive what you left them.
Mental State
If a family member wants to contest your will because he or she is not an heir or beneficiary, one of the most common grounds for contesting the contents of the will is that you did not meet the “sound mind” requirement when the will was written. Will makers (testators) must be of sound mind, know what a will does, know that they are making a will, and know how they want their belongings and assets to be distributed. If a person contests the contents of your will, they may say you lacked the mental capacity to distribute your belongings to the appropriate parties. Having a video will may prevent these considerations from being grounds for a challenge to your living testament.
Age
For a will to meet legal requirements set by a probate court, the testator must be 18 years of age or older. The only exception to this rule is when you are emancipated, married, or in the military.
Manipulation and Fraud
In some cases, family members may claim that one or more trustees committed fraud by manipulating the testator when the latter was in a vulnerable position. This is more commonly referred to “undue influence” in probate court.
Understanding What Will Make Your Will Valid
A will does not have to be full of complex legal terms and statements to be valid. The document must fulfill specific state requirements. In most cases, a state will require that the document do the following:
- State that the document is the will and state the person’s name
- Include a statement that identifies who will receive property or who will become the guardian of a minor
- Appoint an executor to carry out the terms of the will
A will can be done in your own handwriting and still be valid as long as it meets each of these requirements. If the will is handwritten, you must sign and date the paper. Having at least two witnesses who were adults at the time the will was written and signed is a good way to prevent a family member from challenging the contents. If the will is notarized, none of the witnesses on the will must appear in court to swear a will is valid when challenged.
The Best Protection Against Disputes Is Good Legal Advice
To prevent family disputes and leave a legacy to deserving heirs, it is best to know your state’s requirements when it comes to settling probate before you construct a will. The firm of elder law attorney Andrew Lamkin serves not just Long Island but all of New York state and can help you understand how New York law applies to your situation. Call Andrew Lamkin’s office today at 516-605-0625 for a free consultation.
Recommended Resources:
http://wills.about.com/od/fiveessentialdocuments/tp/howtocontestawill.htm
http://www.nolo.com/legal-encyclopedia/grounds-challenging-will-30288.html
http://www.aarp.org/money/estate-planning/info-08-2011/contesting-wills.html
Andrew Lamkin is principal in the law firm of Andrew M. Lamkin, P.C., where he focuses his practice in the areas of elder law, estate planning and special needs planning, including Wills and Trusts, Medicaid planning, estate administration and residential real estate transactions. He is admitted to practice law in New York and New Jersey.
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