The passing of a loved one is upsetting enough by itself. The subsequent probate process can add even more negative emotion, especially if the will is contested. But wills are not often contested out of greed or self-interest. More commonly, they are contested because someone believes the will did not actually express the wishes of the deceased. If this is case, what option is there?
The legal requirements of a valid will
Anyone who is at least 18 years old can make a will. With the rare exception of an oral will, all wills must be in writing and properly witnessed and signed. Beyond this, the will must not have been made as the result of fraud, mistake, coercion and any undue influence. Finally, the deceased must have possessed the testamentary capacity required to complete the will.
Testamentary capacity
Testamentary capacity is a legal phrase that asks whether the person was of sound mind at the time they executed the will. It can be a difficult question to ask and an even harder one to answer. Did they have the mental capacity to understand what their assets were? Did they understand how they wanted those assets to be distributed? Were they aware of who their heirs were and their intended beneficiaries?
Being dissatisfied with the will or disagreeing with how assets were distributed is not sufficient to challenge the testamentary capacity of the deceased. The challenger bears the responsibility of proving an incapacity existed, at the time the will was made, and must produce evidence during probate to support the challenge. It can be a high bar to clear, requiring a diligent investigation of the facts surrounding execution of the will.
