Shocking! 8 Things That Can Spark a Will Contest
A last will and testament is the document used to direct your executor to distribute assets and property according to your wishes. However, it’s not uncommon for disgruntled or distant family members or others to dispute the validity of the will. A recent article titled “5 Reasons A Law Will May Be Contested” from Vents Magazine explains the top five factors to keep in mind when preparing your will. The five factors are discussed below, but read more to find THREE MORE that apply specifically to Louisiana.
#1: Undue influence is a commonly invoked reason for a challenge. If a potential beneficiary can prove the person making the will (the testator) was influenced by another person to make decisions they would not have otherwise made, a will challenge could be brought to court. Undue influence means the testator’s decision was significantly affected by a person who stood to gain something by the outcome of the will and made a concerted effort to change the testator’s mind.
Even if there was no evidence of fraud, any suspicion of the testator’s being influenced is enough for a court to accept a case. If you think someone unduly influenced a loved one, especially if they suffer from any mental frailties or dementia, you may have cause to bring a case.
#2: Fraud or Forgery. Outright fraud or forgery is another reason for the will to be contested. If there have been many erasures or signature styles appear different from one document to another, there may have been fraud. An estate planning attorney should examine documents to evaluate whether there is enough cause for suspicion to challenge the will.
#3: Improper witnesses. The testator is required to sign the will with witnesses present. In some states, only one witness is required. In most states, two witnesses must be present to sign the will in front of the testator. A beneficiary may not be a witness to the signing of the will. Some states have changed laws to allow for remote signings in response to COVID. If the rules have not been followed, the will may be invalid.
#4: Mistaken identity seems farfetched. However, it is a common occurrence, especially when someone has a common name or more than one person in the family has the same name, and the document has not been properly signed or witnessed. This could create confusion and make the document vulnerable to a challenge. An experienced estate planning attorney will know how to prepare documents to withstand any challenges.
#5: Incapacity. Capacity in the law means someone is able to understand the concept of a will and contents of the document they are signing, along with the identities of the people to whom they are leaving their assets. The person doesn’t need to have perfect mental health, so people with mild cognitive impairments, such as depression or anxiety, may make and sign a will. A medical opinion may be needed, if there might be any doubt as to whether a person had testamentary capacity when the will is signed.
The three factors that apply to Louisiana, and which very often come up because of reliance on unqualified Notaries or even attorneys that don’t understand Louisiana law pertaining to estate planning is as follows:
#6: Lack of an Attestation Clause. Louisiana has some of the most stringent form requirements for a statutury will out of the 50 states. Louisiana law provides that if your will does not have the “magic language” or an “attestation clause” your will is invalid. The purpose and the words of the “attestation clause” are meant to reflect that when you signed your will you orally declared to the witnesses that you were signing your last will and testament, and the witnesses listended to you make this declaration. Without an attestation clause
#7: Lack of a Signature on Each Page of the Will. For your will to qualify as a statutory will in Louisiana you have to sign each page of the will. Many states don’t have this requirement, and this (along with the “attestation clause” discussed above) is a major reason to avoid do-it-yourself form wills online. And in addition to the “attestation clause” noted above, your will msut also be signed by two witnesses and notarized by a Notary Public.
#8: Forced Heirship. Louisiana’s forced heirship law remains in place. By default, a forced heir is any child under the age of 24. But a forced heir can also be any other child over the age of 24 if that child (1) suffers from an inherited disease or medical affliction that renders the child incapable of caring for himself or his affairs; or (2) has a medical condition that could, in the future, potentially render the child incapable of caring for himself or his affairs. If you disinherit a forced heir, this could trigger a will challenge if you don’t have your will drafted properly.
A will contest can be time-consuming and expensive, so keep these issues in mind, especially if the family includes some litigious individuals.
BOOK A CALL with me, Ted Vicknair, Louisiana Board Certified Estate Planning and Administration Specialist, Louisiana Board Certified Tax Law Specialist, and Louisiana CPA to learn more about estate planning in Louisiana, incapacity planning, and Louisiana asset protection.
If you liked this article, “Shocking! 8 Things That Can Spark a Will Contest” read also these additional articles: SCOTUS Rules States Can Recoup a Larger Share of Injury Settlements and Three Estate Planning Options for Your Art Collection and What Common Mistakes are Made with Living Trusts? and How Do I Maximize My IRA?
Reference: Vents Magazine (May 6, 2022) “5 Reasons A Law Will May Be Contested”