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This Will Is Bogus! Can I Have It Invalidated?

This Will Is Bogus! Can I Have It Invalidated?

It happens a lot; an elderly person passes away, they are put to rest, and then a little-known heir, friend or caretaker shows up with a supposed will that the deceased signed just months (if not days) before they passed away.  Of course, the new will appoints the individual with the right to act as the executor, transfers a significant portion of the estate to them, and fails to mention the family and/or close friends of the person who passed away.  In these situations, depending on the circumstances surrounding the creation of the will, you may be able petition the Court to invalidate it.

So There Are Ways To Invalidate a Will!  Great!  What Are They?

There are multiple ways that you can ultimately contest a will.  However, the most prominent arguments tend to be 1) proving the testator lacked capacity at the time the will was executed, 2) proving the will was a product of undue influence of an unscrupulous individual, and 3) proving that the technical requirements in the creation of a will were not fulfilled.  While the above options do exist, one does have to keep in mind that contesting a will can potentially have ramifications.  For example, some wills contain “no contest” clauses stating that should an individual contest a will, they will be disinherited.  However, this should not deter you from contesting a will if you truly believe that the presented will is false (additionally, if it is a false will, it is likely you are not included in the will anyway; as such, you may have nothing to lose in contesting it).

How Do You Show the Decedent Did Not Have Capacity When He Signed the Will?

In Washington, a case called In Re Bottger’s Estate, 14 Wn.2d 676 (WA 1942) spells out the requirements for determining if someone has capacity at the time of a will signing.  “ person is possessed of testamentary capacity if at the time he assumes to execute a will he has sufficient mind and memory to understand: (a) the transaction in which he is then engaged, (b) to comprehend generally the nature and extent of the property which constitutes h estate and of which she is contemplating disposition, and (c) to recollect the objects of bounty.”  In more layman’s terms, this means that the individual, at the time the will is signed, they need to (1) fully understand the will and its terms, (2) fully understand what assets of their estate they own, and which they are disposing through the will, and (3) they need to be able to recall the persons that would generally receive under a will (i.e. children, close relatives, close friends, etc.).

What if The Person Had Capacity, But We Think Someone Forced Him to Sign a Will?

This actually happens more than you would think.  Either a person takes advantage of a vulnerable adult, or a individual is somehow else coerced in to executing a will that is not truly what they intended.  While a much deeper analysis is required, the general position of Washington Courts is that, “Undue influence is that influence which, at the time of the testamentary act, controlled the volition of the testator, interfered with his free will, and prevented an exercise of his judgment and choice.” In re Estate of Lint 135 Wn.2d 518, 535 (1998).  Proving undue influence can invalidate a will, force the return of falsely obtained assets, and potentially disinherit the infringer.

Ok, So What If We Know the Will Is Not Correct, But We Just Can’t Prove a Lack of Capacity or Undue Influence?

A tried and true argument that does not necessarily require a showing of wrongful conduct would be to simply show that the technical requirements of signing a will have not been fulfilled.  This is completely a technical argument and does not look at whether any “wrongful conduct” was performed by any parties.  Instead, Washington, much like every other state, has extremely strict requirements for the proper execution of a will.  If these requirements are not followed, and it can be proven that they were not followed, then a Court will generally invalidate the Will as it was not properly created.  Unfortunately, the requirements are too detailed and varied from state to state for me to delve in to them in this article; I would advise contacting my office to review a will if you believe that it was improperly created.

If you have any further questions regarding the contest of a will, or if you have questions on the probate process in general, Nowakowski Legal PLLC would be glad to assist.  Contact us for a free consultation today!

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