Probate Law or Elder Law or Estate Planning

Posted by on June 20, 2016 in Elder Law, Estate Planning, Probate Law | 0 comments

It can be very hard to challenge a will once it has been made legal and around 99 percent of will pass through probate without any problems. This is because wills are taken as the voice of the testator or the one who wrote the will, and because they are no longer alive to talk about what their wishes are the court takes their wills seriously. Those who wish to challenge a will may have a very difficult road in doing so, but there are grounds that can make a will invalid.

Among the most common and often successful reason for making a will invalid is by proving that the testator lack mental capacity when they were making the will. According to the Peck Ritchey, LLC, you have to be 18 years old or older in order to have the legal capacity to write or make will. Minors are deemed not legally capable of making a will according to law. Exceptions are only applicable in certain jurisdictions and circumstances, such as when the minor has served in the military or have married. It is assumed that adults have the mental capacity to make a will, and often, the reason to question the validity of the will is when adults suffer from mental issues. Dementia, senility, insanity, been under the influence (alcohol or drugs), or other challenges in their mental capacity would be strong grounds to question the validity of a will.

Those who wish to challenge a will has to prove that the testator did not have complete grasp of the consequences of their decisions when making the will. Specifically, they did not have a strong understanding of the management of their assets and properties and what a will really is. Likewise, they might also lack complete understanding of scope and value of their properties and who the beneficiaries are. Lastly, the testator may have lacked the capacity to understand how all these elements affect each other to make a distribution of property.

Once a will has been successfully challenged, it will be deemed void either in part or in its entirety. There are instances where a previous will may be reinstated. Once the will has been deemed void, it will be up to the court to distribute the properties as if there was no will from the start. This property distribution will be under intestacy laws and will follow the familial relationships.

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