What are common ways to challenge a will?

| Mar 12, 2021 | Estates

It is very difficult to challenge a will. Roughly 99% of wills will go through probate without issue, even if the probate process takes some time. This is because the courts generally consider the will the final voice of the testator, or the person who wrote it. Since that person is no longer alive to speak for their wishes, the courts turn to the will.

However, there are many ways to successfully challenge a will. Some common ways to do so are to challenge the testator’s testamentary capacity at the time the testator created the will and the potential mitigating effect of multiple wills.

Testamentary capacity

Testamentary capacity is an adult’s ability to make sound decisions. Persons above the age of 18 have the capacity to operate as independent legal entities and the courts assume that these persons have the ability to make decisions for themselves.

However, sometimes it is possible to challenge a will on the basis that the testator was not of sound mind. This is most commonly due to dementia, but litigants can also challenge the testator’s testamentary capacity on the basis of insanity or being under the influence of a substance.

Multiple wills

In some cases, the executor may be working with an outdated will. The courts will consider the newest will on file as the most accurate. Usually, if somebody decides to create a new will, the courts require that the testator destroy or nullify the old will.

In the event that multiple wills exist, the courts will follow the instructions of the newest version. However, if the testator did not follow appropriate provisions for destroying the old will, this may result in estate litigation after the testator dies.