While the clear majority of wills pass through the probate process without much problem, there are some circumstances in which a person (usually an unhappy beneficiary) decides to challenge a will’s validity. There are many reasons why people may decide to challenge a will—and not just because they are bitter about not inheriting what they had expected.
The following are four of the most common reasons why this may happen:
1. You have reason to believe a loved one was under duress at the time he or she made the will
As people get older, they may become susceptible to emotional and mental manipulation. The most common type of “duress” is when others put so much pressure on the testator that he or she feels obligated to put them in the will or give them certain property. If, for example, a mother lives with her daughter and that daughter continually pressures the mother to write her other siblings out of the will, it could constitute duress and undue influence.
However, it is not enough for there to simply be nagging, threats or even verbal abuse. There is a heavy burden of proof on the accuser in these situations. The accuser must be able to show the alleged influencer exerted such extreme pressure that it essentially caused the testator to lose his or her free will. Typically, the accuser must prove some degree of mental incompetence on the part of the testator.
2. You believe your parent has become mentally incapable of creating a will
The most common example of mental incompetence is the onset of late stages of Alzheimer’s disease or dementia. If a physician diagnosed the testator as being in these stages of an illness, that person may have lacked what is called the “testamentary capacity” needed to create a valid will. The “being of sound mind and body” provision often included in the language of last wills and testaments acts as a sort of disclaimer that the testator is, indeed, capable of creating a valid will in his or her current state of health.
3. You believe the testator was a victim of fraud
In some cases, testator might not even realize they were signing or creating a will—they were just told by someone they trusted to sign a document. In other cases, they are aware they are signing a will, but not of its contents, and were likely misled as to what those contents were.
As with accusations of duress, there’s a heavy burden of proof on the accuser in fraud accusations. And again, the accuser must be able to prove some degree of mental incapacity existed.
4. The formalities of creating a will were not followed per the law
The will must be signed by the testator and two witnesses who are not beneficiaries of the will. Additionally, the will must be written. Only in rare cases is an oral will considered valid.
For more information and guidance on how to create a will that reflects your wishes, or to challenge a will you believe is invalid, speak with a skilled U.S. Virgin Islands estate planning attorney today.
Steven K. Hardy is Chair of the Corporate, Tax and Estate Planning Practice Group at BoltNagi, a trusted and established estate and tax planning law firm, serving individuals and families throughout the U.S. Virgin Islands.