The loss of a family member, or someone close to you, is never easy to handle. The loss is typically followed by a period of grieving and coming to terms with the loss. From a practical and legal standpoint, the decedent’s estate must also be administered soon after the death, which means the decedent’s Last Will and Testament will be submitted to the court for probate. What happens if you have doubts about the validity of that Will once you learn the terms of the Will or after you get a chance to actually see the document itself? Is it worth contesting the Will given the emotional and financial burden that will entail? To give you some guidance, the Londonderry estate planning attorneys at DeBruyckere Law Offices explain how to spot a fraudulent Will.
Is Something Really Wrong?
It is important to keep in mind your own emotional state of mind when reviewing your loved one’s Will, particularly if your reaction to the Will is that something isn’t right. That is not to say that you are wrong – simply keep in mind that you are probably reacting through an emotional filter that isn’t always there. On the other hand, if the decedent was someone close to you, and your initial reaction is that something is wrong with the Will, there is a good chance that your intuition is correct. The only way to know with certainty where you stand and what your legal options are is to consult with an experienced estate planning attorney as soon as possible. For now, however, there are some things you can do and consider when trying to decide whether to contest the Will or not.
Can You Contest the Will?
Before analyzing the Will to try and determine if it is valid or not, there are a few preliminary considerations worth noting. For example, to pursue a Will contest at all, you must be an “interested person” which typically means you are a beneficiary under the Will in question, a beneficiary under a prior Will, or a legal heir of the estate. If you are a beneficiary or heir, keep in mind that simply being unhappy with the inheritance left to you under the terms of the Will is insufficient cause to initiate a challenge to the Will.
Grounds for Contesting a Will
Contrary to what the news media would have you believe, you cannot contest a Will simply because you are unhappy with the inheritance you received (or did not receive) under the terms of the Will. Instead, to contest a Will you must allege, and eventually prove, that the Will is legally invalid for one of several allowable grounds in New Hampshire. Those grounds include:
- Improperly witnessed — a Will must be “signed by 2 or more credible witnesses, who shall at the request of the Testator and in the Testator’s presence, attest to the Testator’s signature.”
- Lack of testamentary capacity – alleging that the decedent did not have the required mental state when the Will was made. For the Testator to have had the necessary at the time the Will was executed, he/she must have:
- Understood the act of making a will;
- Understood the property to be disposed of and its general nature;
- Understood his or her natural objects of affection, usually the testator’s nearest relatives;
- Understood and intend to carry out the will’s dispositional scheme; and
- If capacity is present, the will must not be the offspring of a delusion
- Undue influence – claiming that there was an improper influence, usually from another person, at the time the Will was drafted and that affected the terms/drafting of the Will.
- Fraud –claiming that the Will was made as a result of fraud on the decedent or that fraud was used to create the Will.
- Revocation –claiming that the Will was voided, or cancelled out by a later Will or similar document.
Contact Londonderry Estate Planning Attorneys
For more information, please download our FREE estate planning worksheet. If you have additional questions or concerns about contesting a Last Will and Testament, contact the experienced estate planning attorneys at DeBruyckere Law Offices by calling (603) 894-4141 or (978) 969-0331 to schedule an appointment.
- What You Need to Know to Protect Your Special Needs Child - May 30, 2023
- How Tax and Non-Tax Considerations Impact Estate Planning – Part I - May 25, 2023
- The IRS’ Annual Warning: The 2023 Dirty Dozen - May 23, 2023