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When can you challenge a loved one’s will?

| Mar 20, 2017 | Estate Administration |

Generally, if a will is drawn up by an experienced estate planning attorney, there is little room for family members or others to challenge it after a person’s death. However, there are some grounds on which you can potentially challenge a will. Following are a few of the most common.

— Undue influence, fraud or forgery: This challenge is used by those who believe their loved one was manipulated by a caretaker, family member or someone else to leave assets to them. This generally applies when a person was not mentally capable of making decisions for him/herself or when someone other than the testator (the person whose will it is) is believed to have signed the documents.

Testamentary capacity: If it’s believed that the testator lacked the mental capacity (perhaps due to dementia or being under the influence of medication) to create or amend a will, it can be challenged, whether it’s believed that someone else influenced that person or not. Specifically, someone who challenged the will would be expected to show that the testator didn’t understand the value of the estate and to whom he or she was leaving it or responsibilities to anyone he or she was expected to provide for after his or her death.

— Insufficient or unqualified witnesses: A typed will must be witnessed by two competent adults in North Carolina. Exceptions are for holographic (handwritten) wills and nuncupative (oral) wills. The latter are generally done on a person’s deathbed. If you have concerns about witnesses or the validity of these non-typewritten wills, you should consult a North Carolina estate planning attorney.

If a challenge to simply one provision of a will is successful, a provision from an earlier will may be reinstated. In some cases, the entire will is ruled to be void. In that case, a judge will distribute the assets in the estate according to North Carolina law, as if the person had died without a will.

If you have elderly or sick family members, it’s always a good idea to know where they keep their estate planning documents and who their attorney is. If you believe that someone is exerting influence on them, you may want to keep an eye on the situation and perhaps notify their attorney. If you believe you have grounds to challenge all or part of a loved one’s North Carolina will after they’re gone, an estate planning attorney can provide guidance.

Source: Findlaw, “Reasons to Challenge a Will,” accessed Jan. 30, 2017

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