Are you questioning the validity of a loved ones Last Will and Testament? Let's take a look at 6 ways in which a Will can be determined to be invalid.
1. Undue influence
This perhaps is one of the most heart-breaking reasons why a Will might not be valid. Basically, undue influence can be defined as a situation where the decedent (the person who has passed away), made the Will based on someone else’s wishes and not his or her judgment. For example, if someone saw an opportunity to influence your loved one (the decedent), whether by intimidation, physical threat, or some other tactic, and took it. Generally, this would be someone who was close to your loved one. The Texas Supreme Court in Rothermel v. Duncan, 369 S.W.2d 917 (Tex.1963), set out the factors that determine undue influence when contesting a Will. According to the Texas Supreme Court, the following elements are used when identifying undue influence:
- The existence of an influence;
- The use of the influence to either overpower or threaten the testator; and
- The Will would not have been executed if it were not for the influence.
Keep in mind all these elements need to be present for the court to determine undue influence.
2. Lack of Mental Capacity (A.K.A. Testamentary Capacity)
The Alzheimer's Association estimates that 5.8 million people of all ages have Alzheimer's disease in the United States. In Texas, 400,000 people age 65 and older have Alzheimer's disease.
This statistic is equal to approximately 1 in 10 older Americans. It is further estimated that this number will increase to nearly 14 million by 2050. Millions more have dementia and other conditions that affect mental capacity.
In order to have a valid Will, you must be of sound mind at the time it was signed. What exactly does it mean in terms of proving a Will is invalid? You will need to show your loved one lacked the ability to comprehend the nature and extent of the property that was to be distributed per the Will. It also means your loved one did not have the mental capacity to understand the relationships he or she had to the people who would benefit from the Will and really, the overall effect the Will would have once it was executed. As people age, their mental state sometimes declines. Some develop conditions, such as dementia or other ailments, which impact their state of mind. Mental illness, alcohol and drugs can also lead to mental incapacity.
In order for your loved one to have sufficient mental capacity, he or she must have:
- Understood he or she was making a Will;
- Recognized the impact the Will would have on those left behind;
- Known the overall nature and extent of his or her property;
- Identified the natural objects of his or her bounty (the people close to or related to your loved one);
- Had sufficient memory to hold all of this information in his or her mind long enough to make a reasonable judgment as to how the estate should be disposed of upon his or her death.
Proving your loved one did not have the right mental state when making the Will can be challenging. The court will assume your loved one was competent when the Will was created. If the Will was created many years ago, you will need to find witnesses and other evidence to would show your loved one didn’t have the mental capacity to make a Will. Your best course of action is to talk with a qualified probate lawyer for advice on how to proceed. Medical experts may even need to be employed to provide their opinions on the mental capacity problems which often plague the elderly. These experienced nurses and doctors will be able to provide insight into dementia, Alzheimer’s, and other mentally debilitating conditions.
3. Unnatural Distribution
This is an area that comes under consideration when determining if a Will is valid. If your loved one outlined an unnatural distribution of property in the Will, such as disinheriting a child, the court may decide that he or she was not of sound mind, making the Will invalid. If your loved one wanted to make an unnatural distribution of property, it would need to have been clearly articulated and documented.
4. Under the Age of 18
Of all the factors that make a Will invalid, this one is the most straightforward. Basically, if your loved one was younger than 18, his or her Will is not considered valid, unless they were married or in the armed forces.
5. Fraud in the Inducement
Now, this factor probably needs some explanation, as most people do not use “fraud in the inducement” in their everyday vocabulary. Fraud in the inducement has to do with the intentional misrepresentation of facts. If the decedent had known these facts, whatever they might have been, he or she would have made different decisions in regards to the Will. Remember, this is an intentional misrepresentation. It does not mean some simple fact was left out by mistake. Instead, it means someone purposely misled your loved one. For example, someone may have told your loved one a family member or relative, who would most likely have received part of the testator’s estate, did not need the money because they had enough of their own. Another example that often occurs is when one family member starts telling your loved one the family member who would have most likely received part of the testator’s estate was stealing from the testator or was speaking ill of them to other family members and relatives. This type of information would probably cause your loved one to go a different direction when distributing his or her assets.
Not surprisingly, forgery of any kind can cause a Will to be invalid. If your loved one’s signature was forged on the Will, you can contest it. Of course, proving a signature is forged is not easy. You will need proof the signature was not your loved ones. A qualified probate attorney can explain what would be needed.
If any of the factors we just discussed have hit a little too close to home, it could mean you have grounds to contest the Will.
Do you need to speak with a Will Contest Attorney in Dallas?
Call today at 214-559-7202 or contact us online to speak with a member of our team.