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Does your loved one's will accurately reflect his or her wishes?

When a loved one passes away, perhaps the only thing that can make the event more upsetting is a contentious or lengthy legal process. Having a will in place can avoid many of these and other challenges that can arise during probate and the governance of the estate.

That said, simply having a will is not always sufficient for preventing disputes. For instance, if your loved one had a will, but you suspect that it does not accurately reflect his or her wishes, you may need to ask the courts to declare the will invalid.

Grounds for challenging a will

Two reasons why a will may be invalid include lack of mental capacity and undue influence.

  • Lack of mental capacity means that the will-maker did not understand what he or she was signing or agreeing to. If the person suffers from dementia or memory loss, any transactions he or she makes could be subject to challenge. Legal, psychological and medical assessments can determine mental capacity.
  • Undue influence means that a person forced, tricked, or coerced someone to create a will or make changes that do not reflect the will-maker's wishes. An example might be a care provider threatening a vulnerable person unless he or she creates a will that leaves everything to the care provider. 

Challenging an invalid will

If you suspect that your loved one's will is invalid because of undue influence or lack of mental capacity, you may challenge it.

To determine validity, the courts will review the will, assessments and any other evidence parties may have. Based on this examination, a court may deem the will invalid.

Understand, though, that laws dictate who can challenge a will and how long parties have to take this action.

Preventing disputes in the first place

There is a saying that an ounce of prevention is worth a pound of cure. In other words, preventing situations that could trigger will challenges in the first place is best. 

To do this, loved ones concerned with someone's mental capacity or vulnerability might:

  • Change care providers
  • Check on him or her frequently
  • Report suspected abuse to authorities
  • Discuss legal interventions with a lawyer

These measures can prevent undue influence or a lack of mental capacity from creating legal complications in an estate plan.

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