When a loved one passes away, it’s a time of high emotions and stress for family and friends – and what’s in their Last Will and Testament can easily become a source of contention. According to experienced New Jersey elder law attorneys, this is often simply due to surprise, either at who was left what or who was left out. Unfortunately, being disappointed at a will’s contents is not enough to start the legal process to contest the document, but here are four reasons that are:
- Undue influence: This is a serious charge as it contests that someone has put pressure on a person, either through a threat or favor, to include them in their will beyond what they ordinarily would have done. For example, if a primary caregiver (who may be a family member, friend or someone in the person’s employ) suddenly inherits the bulk of the estate when it was previously going to be split very differently. The caregiver may have implied that care would be withdrawn if they were not included on their terms, or the person should feel they owed the caregiver. This is a very difficult case to prove but it is worth perusing if the facts line up sufficiently.
- Fraud: This may include items such as extra pages within a will which were not initialed and may have been included without the person’s knowing, or having someone sign a will under false pretenses, for example telling them it is a bill or contract. These types of fraud make the will invalid, as they are not considered to be in line with the person’s intent. The best way to prove this is to question the witnesses to the will’s signing and find out if they thought the person knew it was a will or not.
- Lack of capacity: In order for a will to be valid, the person has to understand the nature of his/her assets, who should inherit these assets and what signing a will legally means. As certain ailments, such as dementia and Alzheimer’s as well as the aging process itself, can affect the person’s capacity for understanding these three elements, witness testimony is very important in cases where capacity is in question.
- State laws: Each state has different laws governing the signing of wills and, if it does not meet all of these very strict criteria, the document is simply disregarded as a will. Often, these issues arise when people choose not to invest in legal expertise when developing their estate plan, giving people a false sense of security and their heirs an unpleasant surprise.
At Sedita, Campisano & Campisano, LLC in New Jersey, we can offer you over 30 years of elder law practice and estate planning experience to assist you in creating a properly executed, fully legal Last Will and Testament which avoids a lengthy probate process. We can also assist you with other aspects of your estate plan and assist you with expert legal advice in the event you would like to contest a will. For more information on our law firm and our services, please contact us today.