What are the legal bases for challenging a Will?
The most common grounds for challenging a Will are as follows:
(1) The Deceased’s failure to comply with the statutory requirements for execution of a Will (for example, a Will must be signed by the Deceased; and by at least two witnesses who sign in the Deceased’s presence).
(2) The Deceased’s lack of testamentary capacity. “Testamentary capacity” essentially means having a “sound disposing mind”, which includes (a) understanding the nature and effect of making a Will, (b) knowing the general nature and extent of one’s property; and (c) knowing the persons that one might be expected to benefit under his/her Will.
(3) The presence of undue influence on the Deceased in making his/her Will. Essentially the Deceased must have been coerced into making the Will.
(4) The presence of suspicious circumstances that call into question the Deceased’s knowledge and approval of the contents of the Will. Suspicious circumstances often include a new Will being a marked departure from a previous Will, a new lawyer being engaged to draft a new Will, or a beneficiary playing an active role in the Deceased’s Will.