In the wake of celebrity deaths, you often hear of family feuds and subsequent will contests. With these stories making the headlines on a regular basis, it may appear that contesting a will is a fairly simple process; this is far from the truth. Far too often, people think that if they’ve received less than a sibling following the death of a parent or if they’ve been disinherited altogether, they should challenge the will. In reality, in order for a will contest to be successful, it generally must be based on one of the following:
1. The testator (the person who made the Last Will and Testament) was not mentally competent when the will was drafted and/or executed.
Nevada state law requires that a testator be over 18 years of age and of sound mind. In cases where an individual is suffering from dementia, has sustained a serious injury resulting in mental incapacity or is taking medications that may interfere with cognitive ability, a loved one may challenge the provisions of the will, arguing that the will-maker was not of sound mind and therefore could not legally execute a valid will. Mental incompetence can be difficult to prove, often requiring the assistance of medical experts or loved ones who can testify on the mental health of the testator.
2. The will wasn't signed in accordance with state law.
Each state has specific laws regarding necessary provisions that must be included in the document and how it must be executed. In Nevada, a will must be signed by the testator and by two witnesses. In cases where a testator cannot physically sign his name, he may ask that another party do this on his behalf but it cannot be either of the witnesses. A beneficiary named in the will should not serve as a witness or all gifts to that subscribing witness may be considered void unless two other competent witnesses are present.
3. The testator was subject to undue influence.
Unfortunately, many individuals, particularly senior citizens, are often susceptible to coercion or unduly influence from others. This is often the case with caregivers who are said to have the testator’s ear and are responsible for their ongoing care. If the case can be made that this individual exercised control over the will-maker and consequently their true intentions were not made known in the will, a court may find that it is not valid. This too can be very difficult to prove.
4. The drafting or execution of a will was done in a fraudulent manner.
In cases of fraud, the testator may not know what they are signing. For instance, if the will-maker is visually impaired and is told they are simply signing a HIPAA release when instead they are handed a will to sign (without the ability to see or decipher the difference), the document would have been the result of fraud and consequently found to be invalid by the courts. As with most other challenges, this can be difficult to prove once the testator has passed on; the contest often becomes a he said, she said battle among parties.
5. Another will with different instructions is found.
If a second will that was never revoked is found with different provisions, a contest over which document is valid may ensue.
It’s important to note that many wills contain “no-contest clauses” which are meant to deter beneficiaries from challenging the terms of the legal document. Depending on the wording of the clause, a beneficiary may be disinherited or given a very small of money should they decide to contest the document in a court of law.
In addition to strict grounds on which a contest must be based, any challenges must be filed within a given time frame and in accordance with judiciary guidelines. If you are looking to contest a will, it’s absolutely critical that you contact an experienced probate attorney to guide you through the complex process. Attorney S. Craig Stone II has assisted individuals and families throughout Las Vegas for over twenty years. Schedule your free consultation by calling 877-905-0890.