The perfect situation in administering an estate involves a relative coming forward with the will of the deceased, entering it in probate court and everything goes according to the wishes of the testator, with the estate being quickly and successfully closed.
However, perfect situations do not always occur and motives are not always pure. Situations may arise where a challenge or contest needs to be made to a will or trust, and the below situations explain when these circumstances may arise.
1. Lack of Capacity
A will or trust can be challenged if it is believed that the creator of the will or trust, did not have the mental capacity to enter into this type of legal document due to illness or mental deficiency.
This type of contest usually occurs when the creator of the will is an elderly individual who writes a completely new will later in life, after already having created an estate plan previously.
Many times, this type of challenge arises when an aging parent completely rewrites an estate plan, changing beneficiary designations or executor appointments, and the children or individuals who were negatively affected by this new development or version believe that the parent did not have the capacity to understand what he or she was doing.
It would fall upon the witnesses who saw the testator execute the will, as well as the attorney who helped create it, to say whether the individual seemed to have the mental capacity at the time of signature.
2. No Witnesses or Signature to the Document
This challenge can be easily made if the document that is being enforced does not have a signature from the testator or settlor.
Also, a challenge can be raised if the testator or settlor did sign, but no witnesses signed or were present at the time of signature.
3. Undue Influence
One of the more common challenges to an estate plan is undue influence.
These challenges state that a person who has a stake in the outcome of an estate plan has exerted pressure or has made threats to the testator to the point where the testator was influenced to make changes or write an estate plan that he or she would not have otherwise done.
Many times, this challenge goes along with the mental incapacity of the testator as relatives of the deceased argue that the person who exercised undue influence preyed upon the relative due to his or her age and mental capabilities.
The individual who has said to have exerted “undue influence” is often the person who is the caretaker for the deceased and because of this close relationship, it is often argued that he or she had the ability to influence the decisions of the testator.
4. More Recent Version Available
Another challenge to a will or trust is the one that is being used to administer the estate is not the most recent version.
Often, individuals will create a new estate plan and not destroy the previous ones made.
Most estate plans state that the new will or trust revokes prior versions but if one of these earlier versions are found and are believed to be the current plan, mistakes can be made.
It is important to ensure that the most recent version is used when it comes to administering an estate.
5. Fraud
One less common situation is where fraud is being perpetuated.
For instance, in some rare situations, individuals may try to produce a will or trust that was never created or signed by the testator or settlor.
Bringing forth the true document will expose the fraud and throw out the version that is not created by the deceased.
No-Contest Clauses
One word of caution in bringing a challenge to a will or trust.
Many estate documents include what are known as no-contest clauses, which state that if someone challenges a will or trust and later loses their case, that person will be removed from receiving benefits or inheritances from the estate.
Consult with an attorney first on any claims before making a challenge to determine the pros and cons to bringing the challenge as well as the merits of the potential case.
Contact Brian M. Douglas, LLC today
If you are not sure you need an attorney, you can always come in for a consultation to discuss your situation. Please contact our office if you or someone you know has recently been appointed personal representative of a loved one’s estate and has questions about what to do next. Call us today at (770) 933-9009 or contact us online to schedule your consultation with a Greater Atlanta area probate lawyer today.
