Legal Means For Contesting A Will

By contesting a will or a trust, you practically challenge the document validity.

An analogy can be made with the situation in a pro football game when the flag is thrown after a call by a referee.

A court judge is the person that can assume the validity of the will. In this case, throwing the flag means that you contest this quality of the will.

There are two main reasons you can invoke in the favor of your contest. You can say that there was undue influence in executing the will or you can say that the person executing the will had not the proper mental state of mind at that moment.

The significance of undue influence in executing a will

The definition of undue influence in legal terms sounds like this:

The undue influence is the influence exercised by another person over the testator or the donor. This situation leads to the will being nullified or a future gift being invalidated. Undue influence can manifest in various forms: excessive insistence, superiority of will or mind, the relationship of the parties or pressure on the donor or testator by any other means to do what he is unable, practically, to refuse.

If you find out that there are serious reasons to believe that the testator or the donor had suffered such an influence, you have enough to go on contesting the will. You can claim the use of undue influence over the person executing the will, meaning that this person was put in a situation where he or she could not refuse to do what was told.

Another reason that can be used when contesting a will is to invoke the lack of discerning mental capacity on the part of the testator or the lack of testamentary capacity.

Testamentary capacity represents the legal ability to make a will. There are extensive explanations of this legal formula. For instance, in California, Probate Code Section 812 says that a person lacks the capacity to make a will unless the person has the ability to commnicate verbally, or otherwise, the decision regarding the will, and to understand and appreciate, to the extent relevant, a series of things. It refers to the rights, the duties and the responsibilities created by or affected by the will, the consequences of executing the will as well as the risks and the benefits of applying the will.

You must take into consideration all those mentioned above, in case you want to make a legal contest concerning a will, by using the lack of testamentary capacity.

It may sound like a tough case, but it is not impossible to win in court on such bases. There are cases where important amounts of money were gained and the lawyer strategy involved the lack of testamentary capacity.

Frederic Haislip is the Editor and Publisher of Article Click. For more FREE articles for your ezine and websites visit - www.articleclick.com

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