The following is an introductory, general discussion on the topic of will challenges. It does not constitute legal advice.
The person who creates a will is call the “testator.” The testator’s “estate,” conceptually, is all of the testator’s net assets (subject to certain exceptions) upon the death of that testator.
In a will, the testator instructs those who survive him or her of how he or she wishes his or her estate to be disposed. The underlying and guiding principle of wills and estates law is to give effect to the stated intentions of the testator with respect to how to distribute the assets of his or her estate.
The situation that can arise is that, following the death of the testator, a party who believes himself or herself entitled to an inheritance was not included in the testator’s will, and is thus contemplating challenging the will.
There are only a limited number of reasons why a will could be successfully challenged. Some of the common reasons are as follows:
If the testator does not know or approve of the contents of the will, the will would not be valid. If, at the time of making the will, the testator did not have the capacity to understand what the will said or know what assets made up his or her estate, then the testator could not have known or approved of the contents of the will. In other words, if the testator did not have the capacity to make a will, then the testator could not have had the intention to dispose of the assets constituting his or her estate as per said will.
If, at the time of making the will, the testator was coerced with respect to how to distribute all or some of the assets constituting his or her estate, then the testator could not have had the intention to dispose of the assets constituting his or her estate as per said will.
Unjust Enrichment or Constructive Trust
Technically, this is not a will challenge, but a claim in equity for an unpaid debt against the estate of the testator. A third party to the will was promised something in exchange for funds or effort, which he or she provided to the testator, but in respect of which there is no written contract evidencing this agreement. For example, John, an elderly man with three children and no spouse, promised Sally that he would leave her the house if she took care of him. Sally quit her job, spent the last five years of John’s life living in his house, cooking him meals, taking him to the doctor, cleaning, doing his laundry, etc… John died, and the house was not left to Sally.
In this type of situation, if the courts find that a promise was made by the testator, the testator was unjustly enriched by the performance of the other party to whom the promise was made, the other party relied on that promise to his or her detriment and there is no formal written agreement documenting this exhchange , the court may find that all or part of the testator’s estate was held by the testator in trust for the benefit of that other party.
Revocation and Voided Wills
A subsequent will revokes a prior will. Accordingly, a will that is not the last will and testament of the testator will be revoked by the last will and testament of the testator. Also, a will can be voided by operation of law. In this respect, a subsequent marriage voids a will, unless the will was made “in contemplation of marriage.”
A court is entitled to set aside a will if the will offends public morality. For example, if a testator conditions a gift in the will in a manner that discriminates against people, or on a bequest that requires the beneficiary to break the law, etc…, then, notwithstanding the intention of the testator, the court may set aside the will.
Subject to certain limited exceptions, a will has to be in writing, and usually is. It must be signed by the testator, is required to have two witnesses and those witnesses must sign the will in the presence of the testator. Any deficiency in the foregoing is likely fatal, and could result in the will being set aside.
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