Wills trusts and estates covered

There are reasons for a will to be contested and one is the mental capacity of the client.

The best way to avoid a will contest, is to have a well-written will prepared by a qualified estate planning attorney, who can help avoid legal contests. It is also important that the client be of sound mind and body. However, there are times when this is not the case and a challenge may occur, according to The Huntsville Item in “Legal Corner: Will contests while rare are messy“.

A will is contested when the person challenging the will believes that it does not represent the true intent of the testator.

A will must be written in the correct form and executed according to the law in order to be valid. This is why it is necessary to work with an estate planning attorney to create a will. A person may try to do it on their own, typing it out, downloading a form or copying a form, but because the law is very strict about the form and execution, many of these do-it-yourself wills end up being deemed invalid by the courts.

When the will is not valid, the laws of intestacy are applied to the person’s estate. This is rarely in accordance with the person’s wishes, but at this point, it’s too late.

To make a will, the person must have “testamentary capacity.” That means that he or she knows what they are doing, what their estate includes and who the beneficiaries of the estate will be. They also must not have been subject to undue influence. That means that the person making the will is so controlled and dominated by another person that they were unable to make the will that they wanted.

When the sad day comes that a loved one passes, the family grieves. Each member will deal with the loss in their own way. For some people, the intense level of emotions can bring about conflicts. Sometimes these are the result of old battles that were never resolved. Sibling rivalry that’s been simmering for decades can emerge.

One of the goals of a properly prepared will is to prevent any family fights after a loved one has passed.

Studies have found that the struggle over mom’s necklace or dad’s watch are not about the material items themselves, but over the symbolic meaning of those items. When families fight over inheritances, it’s rarely because of the actual item or even the money.

As the family’s older member, you want to do anything you can to avoid fracturing the family after you’ve gone.

Unless you take the steps to create a will and a strong estate plan, your loved ones could be entrenched in a long inheritance conflict that lasts years and consumes more resources than anyone can spare. However, with careful planning, you can avoid inheritance conflicts. After all, estate planning is more for those you love than for you.

An estate planning attorney can advise you on creating an estate plan that fits your specific circumstances.

Reference: The Huntsville Item (May 26, 2019) “Legal Corner: Will contests while rare are messy

For more information on asset preservation and estate planning, please visit my estate planning website.

Mr. Amoruso concentrates his practice on Elder Law, Comprehensive Estate Planning, Asset Preservation, Estate Administration and Guardianship.