In the majority of cases wills are either not challenged upon execution, or the challenge is difficult to prevail upon. This is by design, as the legal presumption is that the will is the expression of the now-deceased testator who cannot be present to rebut claims against his or her wishes. Nonetheless, occasionally grounds do exist to challenge a will. This post will briefly consider some of the most common ways that such challenges may arise.
Lack of capacity. As long as the testator was at least 18 years old and not mentally incapacitated at the time of the will’s writing, the law presumes that legal capacity to make the will existed. But if it can be shown that the testator was not in fact sane, or was senile or in some other way was not in possession of his or her faculties, then lack of capacity can be the basis for a challenge.
Undue influence, fraud or forgery. If it can be shown that another person was either exercising undue control over the testator at the time of the will’s writing, or that the person who wrote the will was not in fact the testator, then a successful challenge may ensue.
Multiple wills. If more than one will exists, then a challenge may issue based on the primacy of one (usually the more recent) version over the other.
Insufficient witnesses. Nevada requires that a valid will be witnessed by two adults. If it can be demonstrated that there were either not enough witnesses, or that not all of the witnesses were adults, then a challenge may be successful.
This post is only an informational overview of the subject of will challenges. It is not intended as, nor should it be read as legal advice. Anyone who wants to create a valid will, or to contest the validity of a will, should contact an estate planning law firm for specific assistance.