If the person making the will (known as a testator) is thought to be lacking testamentary capacity, then the will is invalidated. It will also call into question how to divide up the estate among beneficiaries. This is one reason why, if you're writing a will, you should consider using your GP as a witness.
Reasons for an invalid will
It hasn't been signed properly. It's been destroyed or altered. The person who made the will (known as the 'testator') was not of sound mind at the time of writing their will. The testator was put under pressure.
You need to get your will formally witnessed and signed to make it legally valid. If you want to update your will, you need to make an official alteration (called a 'codicil') or make a new will.
An original will stored by you is the property of the client and after the client's death, it is the property of the estate. You should store the original will until after the death of the client, or until you are able to return the original to the client.
You may not need probate if the person who died: only had savings. owned shares or money with others - this automatically passes to the surviving owners unless they've agreed otherwise. owned land or property as 'joint tenants' with others - this automatically passes to the surviving owners.
Not correctly signed off – The will is not signed, dated and witnessed correctly. You must sign and date your will in front of two independent witnesses who must also sign. Lack of mental capacity – You did not have mental capacity (and therefore lacked understanding) to make a will at the time it was set up.
These factors include, but are not limited to, circumstances where the Will may have been forged, whether the testator lacked mental capacity to understand their actions not only when writing the Will but in also signing it, whether the testator has been manipulated, pressured or even coerced in to signing a Will, ...
Fraud or Undue Influence
If the court finds that fraud or undue influence were involved in the creation of your will, it will be deemed invalid. Common situations could include: A nonfamily caregiver forcing the testator to leave them an inheritance.
The golden rule
It outlines that when a solicitor has doubts as to the capacity of client wanting to make a will, medical opinion should be sought. The signing of the will ought to be witnessed or approved by a medical practitioner, who should be completely satisfied that the client has testamentary capacity.
Most estate planning attorneys take on the responsibility of holding their clients' original wills and other documents. They do this for two reasons. First, they are often better equipped to keep the originals safe where they can be found when needed.
A solicitor can check that the will has been drafted and executed properly and confirm that it is still valid.
failing to take account of all the money and property available. failing to take account of the possibility that a beneficiary may die before the person making the will. changing the will. If these alterations are not signed and witnessed, they are invalid.
60% of claimants who disputed their inheritance obtained some form of benefit from doing so.
Valid execution of a Will includes the following: The Will is in writing, signed by the testator, or someone in their presence who has been instructed to sign the document on their behalf. The testator intended to give effect to the Will, when signing the document.
What Are the Chances of Contesting a Will? The chances of contesting a will and winning are slim. Research shows that only 0.5% to 3% of wills in the United States undergo contests, with most will contests ending up unsuccessful. You will need valid grounds to contest a will.
The Testator must intend to revoke the will and is the only person allowed to validly destroy their own Will. A Will can either be destroyed directly by the Testator or by the Testator giving directions to a third party in their presence.
You can do so by creating a codicil, which is a written amendment that makes changes to your Will. Be sure you understand your specific state laws so your codicil is valid.
Until a Grant of Probate or a Grant of Letters of Administration is applied for, the deceased's assets will remain frozen, and you'll be unable to sell or transfer a property held in the sole name of the person who died.
What Happens If You Never Go to Probate? If Probate is necessary but never established, beneficiaries will not receive their inheritance or assets. The assets of the deceased person will be held by the state and frozen as there are no legal beneficiaries of the assets.