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Elder Law Blog:

Basis for Contesting a Will

Following are several grounds for Will Contest.

  1. Testamentary Capacity

        The testator must have the following before he/she can sign a Will:

  1. Understand that he/she is creating a Will
  2. Understand the effect of creating a Will
  3. Understand the nature and extent of his/her property
  4. To have sufficient memory to know he is creating a Will
  5. To hold the information together to understand that he is creating a Will                            
  6. To be able to form a reasonable judgment as to them.

        If any of the following is missing at the time the testator signs the Will, the Will can be contested.

  1. Undue Influence

        If there is influence present and exerted by another on the testator, and the influence has the potential of undermining or taking over the mind of the testator at the time of execution of the Will, and the document would not have been signed by the testator but for the influence, then there is undue influence presence. Begging a person to include in their Will is allowed so long as the testator wanted to include the beggar in the Will. But its undue influence when the testator includes the bigger into the Will just to get the beggar to stop bugging.

  1. Forgery

        A Will can be contested if there is evidence present that the testator’s signature was forged, or that the handwriting within the document was forged. To prove this, a contestant would require handwriting expert, and/or a person who can testify as to testator’s signature and handwriting.

  1. Improper execution

Attested Wills: Attested Wills are wills that are typed up. They require a notary to notarize the testator’s (person executing a Will), and two witnesses’ signature. This type of a Will requires two independent witnesses to witness testator execute the Will. it is further required that the witnesses are present when the testator signs the Will. If there is evidence to the contrary of witnesses not present while testator signed the Will, then ti is a ground for a contest.

Holographic Wills: Holographic Wills are wills written wholly in testator’s handwriting. This type of Will does not require two witnesses to witness testator sign the Will. But it does require two witnesses to prove up testator’s signature and handwriting. If this type of Will is not wholly in testator’s handwriting, it will not only be hard to prove-up with the Court, but it also poses a ground for contest.

For more information, or to answer any questions you have, contact an attorney, like an elder law lawyer Arlington TX trusts today.

 

Thanks to our friends and contributors from Brandy Austin Law Firm PLLC for their insight into elder law.