Wills are contested sometimes just because people don’t like them. But generally, those types of will contests don’t go very far. The Wills that are signed a week before somebody dies are always suspect–we call them deathbed Wills, especially if they’re in a hospital and under medication. It’s always a good idea to be doing your will and making your decisions at a time when there is no exigent circumstance standing out there, such as you’re going to die at any moment. And those are the much stronger Wills.
In order to override the wishes in a Will, basically, you have to get rid of the Will. Wills can be contested for many different reasons. There can be people that are under the undue influence of another person–somebody has gotten old, their mental faculties aren’t maybe what they should be, and somebody has been able to unduly influence them into giving them their estate or giving them a large portion of their estate. When Dad remarries a younger woman and ends up writing a Will leaving his estate or a large part of it to the younger woman that doesn’t always mean that he is under undue influence; that may be exactly what he wants to do. But undue influence is one of the major reasons for a Will contest.
The other thing is the lack of testamentary capacity. In deathbed Wills, that’s often an issue. If you’re under pain medication, if you’re going through chemo, if you’re doing these sorts of things, it’s almost impossible to be able to understand your business, your family, what you’re doing at that moment that you’re signing the Will. In order to have testamentary capacity you have to know your family, you have to know your property, you have to know the attachments that your family has to you, you need to understand that you’re making a Will, you have to know that you’re actually giving property away upon your death, and you have to hold all those concepts in your head at one time while you’re signing the Will. Now, you could be unconscious, wake up, have a lucid two seconds, sign the Will, and arguably you would have had testamentary capacity when you signed that Will. But normally what happens in a Will contest is it comes down to what the medical records are showing, to see whether they were actually able to handle all that or hold that in their mind at that time.
This video is part of a series on Wills and Probate. Click the links below to view more videos in this series.