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3 reasons you might challenge a will

According to a recent CNBC report, estate taxes are surprisingly not the biggest threat to estate plans – families are. The reasons for this follow familiar patterns of human conflict: miscommunication, unrealistic expectations and a history of family drama. Even so, there are times when legitimate concerns about a will or estate plan need to be examined and possibly addressed via probate litigation. Here are three reasons why you might want to challenge a will.

1. To illuminate undue influence

Undue influence claims arise when surviving family members, heirs or beneficiaries suspect the deceased was wrongfully coerced into changing their will. Typically, the culprit served in a caretaker role or was close enough to the deceased to take advantage of his or her dependence or declining mental capacity. They may not even be a member of your family.

To achieve their aims, those who unduly influence the elderly into changing a will do not often tell family members about changes or updates to the estate plan. They may enlist the services of a different firm or attorney to make updates to avoid suspicion. So, it comes as quite a surprise when, after the funeral, the will reveals new instructions or instructions that defy common sense.

If this happened to your family, you can challenge the will if the estate's administration is still in process. Bringing an undue influence claim requires the use of medical records, eyewitness testimony and perhaps expert witnesses to determine whether your loved one was of sound mind when the changes were made.

2. To challenge whether the deceased was competent

Similar to undue influence claims, you may also challenge a will if you believe the deceased was not competent enough to create it or to know what they were signing. Your elderly parent or relative’s mental capacity may have already been in steep decline at the time the will was said to have been created or updated. Again, medical records and the testimony of psychologists and/or caregivers will be necessary to prove that your loved one was sufficiently incapacitated such that the provisions of the will are not valid.

3. To challenge the choice of executor

A less sinister but just as complicated challenge would be if you have reason to believe that the deceased's choice of executor is unfit for the job. Typical reasons might include that the person is:

  • Mentally unfit for the task
  • Known to have fraudulent dealings in the past
  • Not acting in the best interests of the estate plan (called "breach of fiduciary duty")
  • Actively committing estate fraud

Remember, the fact that you do not like the executor or you think they aren't good with money may not be reason enough to remove them. You need to have solid evidence that the person’s actions, negligence or intentions will significantly harm or derail the estate administration process.

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