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A will is a precious document that determines the distribution of a person’s assets to individuals on his demise - according to his choice and in a legally approved fashion. The beneficiaries of a will are usually those who fall in the law of descent from spouse, to children and then their descendants. But a person is also free to leave his money to anybody he likes – he can leave his property to charity, a sizeable sum to his faithful butler, and not a penny to the family. But his legal heirs may not like this.
Thus there is scope for legal wrangling and contesting of the wills of certain people. Beneficiaries may not like the size of their share. Others may be left out of the list of beneficiaries. Whatever the reason, many wills are subject to contesting, especially when they involve large estates and millions of dollars are at stake.
A will contest is a formal objection raised against the validity of a will, based on the contention that it does not reflect the actual intent of the testator. Wills are contested on the premise that the testator lacked capacity, was insane or under delusions, or was subject to undue influence.
Typically two kinds of persons stand to contest a will: those who are named in the face of the will and those who will inherit from the testator if the will is invalid.
In defining capacity for a will, all adults above the age of 18 are fit to write wills, and minors are termed incapable. Litigation usually revolves around incapacity of testator due to senility, dementia and insanity or any such defects which render him unable to form a proper will. But the state recognizes that capacity to form a will is present if three conditions exist-the testator knows the value and extent of his property, which his family members are and how they treated him in his lifetime.
This legal test is relevant since dissatisfied heirs who expected a larger share than what they received bring most of these contests of will. The burden of proof thus rests on the complainant to establish incapacity of the testator. They must prove that the testator had lost his memory or was under delusions while writing his will.
Lawyers of testators whose capacity is doubtful maybe called to record interviews with his client on video. They may test the capacity of the testator to remember his family members, about his property and about the contents of his will.
Undue influence is the second clause, which is used as a bone of contention. In many states a legal premise of ‘undue influence’ arises when a beneficiary of a will stand in a confidential relationship with the testator.
Undue influence in contract law is of two types-presumed undue influence and actual undue influence. Presumed undue influence exists among the following groups-parent/child, guardian/ward, priest/parish member, solicitor/client and doctor/patient.
In case a testator has left his property to the attorney who drew up his will, the onus is on the attorney to disprove undue influence. An innocent party may also set aside a contract due to actual undue influence.
Besides these conditions, a will maybe contested for technical details. Common mistake is to name a beneficiary as a witness. Also signatures may not be in order. Property value may not be correctly estimated. Names of beneficiaries maybe wrongly indicated, dates maybe wrongly marked, executor may be unwilling, amendments and codicils may not be properly framed or a new will completely revoking an earlier will be contested.
» left by Sandra Ceccato from Las Vegas, NV (1 year 91 days ago.)
My father and mother completed a last will and testament in Illinois in 1967, but both passed away in Nevada (they resided in Las Vegas, NV since 1983). My oldest sister, who is the executor of this will decided to do whatever she pleased regarding the will (she resides in Bensonville, IL); the estate is less than $100,000.00. She did not file the will through any attorney or the courts. What can I do to assure my parents wishes are carried out? I live in Las Vegas, Nevada. Thank you for any assistance. Sandra Ceccato 702-982-5396
» left by James Zimmerman from Sun Prairie Wisconsin (1 year 50 days ago.)
Sandra - If there is a will then you should immediately start a case (get a case number) that means suing your sister. You don't really want to go to court, I'm sure, but you do want your parent's estate to be under the jurisdiction of the court. By filing a suit, you will give them jurisdiction. After the suit is filed, you will make a motion that all items within the estate be frozen until which time the parties (you and any other heirs) can meet to ensure a just resolution. The judge should grant the motion, but you may want to be prepared for your sister's objection by reviewing the probate law in the state which your parents passed away. If your sister squanders the estate that could be a criminal matter. To help ensure that she doesn't wind up in jail - you'll want to file your suit sooner rather than later. Because you are in Las Vegas, you may want to look for a law office that has a branch somewhere in Illinois. If none is available, then it would be better to have an attorney in Illinois and you fly to see him rather than a Las Vegas attorney who is licensed in illinois too that you'll have to pay to go to Illinois. It probably can be wrapped up in short order, unless your sister gets nasty. Then it could run for years. You may suggest to her hiring an attorney to handle the whole matter fairly in accordance with your parents wishes. That would take her out of the bad guy role and allow you two to remain friends while making the attorney the impartial executor. Yours truly, Jim Zimmerman Sun Prairie Wisconsin
» left by Dale Pannunzio from Rome NY (1 year 76 days ago.)
My father, remarried. There are 5 children from my father and mother.
My father had me in his original Will, and 3 years ago, got cancer and my stepmother for the fear he had of dying in 6 months, talked him into changeing the Will, and cutting out all of biological Children, and leaveing all his assets and holdings to her. He stated that she would divide the money up to all his biological children, plus she would get a considerable amount in life insurance policies he had. Well when he died, my step mother informed us biological children that she would not give us anything.......What is my options at this time.
» left by Nancy Gearhart from Ridgely, Md. (236 days 14 hours ago.)
Our mother passed away 19 years ago. Our father passed on recently after a remarriage of 9 years. His will designates their house and his personal belongings to the step-mother and the remainder of the estate was to be divided between us four children. Our mother had invested most of her school teaching money and some inheritance money wisely which has accumalated to quite a sum over the years. Over the last 3 years, much of which our dad was sick, the step-mother, little by little, convinced our Dad to add her name with his on our Mother's investments. Now she gets all of our mother's hard earned investments, which we're sure was not the intention. We are curious what lead to our father even allowing this. He was a very trustworthy person. Maybe he thought his children were covered by the will. Or she did some real fast talking. Is there anything we can do about the investments that were made by our mother years before our father and step-mother were married?
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