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How to respond when a will is challenged

This blog has discussed in the past how to know if a will is valid and how to ensure that a will is valid as part of an overall effective estate plan. If there is a will contest, or challenge to the will, it is important to know how to respond in those circumstances.

It is important to know in what circumstances a will may be challenged. Any interested party in a will may challenge it but spouses are most commonly the ones that challenge a will. It is difficult to successfully challenge a will as the vast majority of wills proceed through the probate process uneventfully. A will may be challenged on the grounds the estate planner lacked testamentary capacity to execute their will. There are several components of testamentary capacity to be familiar with.

Testamentary capacity may be challenged on the basis of the estate planner's age. To validly execute a will, the estate planner must be 18 years old or older to be considered to have capacity to execute a will. In addition, the estate planner must understand the extent of their property, who their beneficiaries are, what making the will means and meet other requirements as well. A will can also be challenged is there was any fraud, forgery, undue influence or duress involved in making the will.

Lastly, the execution of the will must meet witness and signature requirements which can vary by state so it is important for the estate planner to be familiar with what the requirements are in their state. Part of a complete estate plan includes ensuring that the will is validly executed so that it, along with the overall estate plan, can provide peace of mind for the estate planner and their family members and hopefully avoid any will contest down the road.

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