Challenging a will is often a very difficult process. An overwhelming majority of wills go through the probate process without much problem, which means their validity is verified. Unless there are unusual circumstances, court officials aim to have wills go through just as the testator intended.
There are some circumstances, however, in which an individual or family can successfully challenge a will in the U.S. Virgin Islands. In most cases, successful will challengers are the spouses of the deceased. Wills may be successfully challenged and voided in a variety of situations, including:
- Lack of capacity: Only people at least 18 years of age who are of sound mental state are legally able to create a valid will. The most common challenges to will validity are due to a lack of mental capacity to create the document. These challenges usually arise when the deceased suffered from dementia, insanity or Alzheimer’s disease, or was under the influence of drugs or alcohol at the time of creation.
- Fraud or forgery: Wills may be successfully challenged and voided if the challenger is able to prove the document was not actually created and signed by the testator.
- Undue influence: If the testator was under undue influence by another person who was manipulating their decisions, the will is invalid. Of course, the challenger must be able to prove the presence of such an influence.
- Will is outdated: In some cases, a potential challenger might uncover the presence of a more recent version of the will. If this newer will is valid, it overrides any previous iteration of the will. Thus, an outdated will that has already gone to probate could be invalidated.
- Lack of witnesses: Any copies of the will must be dated and signed by at least two adult witnesses in addition to the testator. Some jurisdictions may require more witnesses. It is important to be familiar with the witness requirements in the state or territory in which you created the will to ensure it will be valid.
- Lack of certain provisions: In most cases, a valid will must specifically state it was made by the testator, include at least one substantive clause and name a person to serve as the estate executor or personal representative.
- Residence factors: There are some factors in which where the person lived when he or she created the will or where the person passed away could play a role into whether or not the will is technically valid.
Challenging a will is usually an uphill battle, but there are some situations in which doing so makes sense and could protect a beneficiary’s inheritance. To learn more about how to proceed with challenging a will, speak with a skilled U.S. Virgin Islands estate planning attorney.
Steven K. Hardy is Chair of the Corporate, Tax and Estate Planning Practice Group at BoltNagi, a respected and well-established estate and tax planning law firm serving clients throughout U.S. Virgin Islands.