Upon the loss of any loved one, there are a number of legal and financial issues to consider, while at the same time grieving the loss of a member of the family. Aside from funeral arrangements, the estate of your late loved one will need to be considered. If the person left a will, that will certainly help to divide assets, but in some cases, particularly in the case of a person who was unable to care for him or herself in the twilight years, there may be questions about the validity of the will or trust.
In general, a will may be invalidated if the testator, the person who made the will, lacked testamentary capacity. In common language, you might think of the phrase “sound mind and body” to describe the meaning of “testamentary capacity.” A will made by a person who is not mentally sound may be invalidated. A will may also be invalidated if the testator was subject to undue influence or fraud; in other words, the will may be invalid if the person making it was being forced or coerced in some way. An extreme example might be physically threatening someone, but lying or misrepresenting information in order to trick someone into making a change to a will could cause it to be invalid as well. The same causes of invalidity in a will could also cause a trust to be invalidated. It should be noted that a will cannot be invalidated on the basis of being “unfair.” The person who has passed on had the right to dispose their property in any way they wish, as long as it is legal. For information on contesting a will or trust, contact an experienced estate planning attorney for information.
In a case where a person named in the will has a confidential relationship to the testator, there may be a legal presumption of undue influence. This is not, however, automatic, and the burden of proving undue influence would initially on the person making the claim. In some cases, the testator may include a no-contest clause, indicating that anyone who contests the will be excluded from it automatically. However, if there is probable cause for someone to believe that there was undue influence, and that person successfully contests the will, that clause would have no real effect since the entire will would be invalidated.
Not everyone can contest the validity of a will or trust. Generally speaking, in order to contest the validity of a will or trust, you must have a stake. A person who is named in the will or trust can contest its validity, as can a person who stands to benefit from the will being declared invalid. If you believe that the will or trust left by your late loved one may have been made under invalid circumstances, Rhett Meyer is a Colorado estate litigation attorney with years of experience in wills and trusts, estate planning and litigation who can help you with the legal contest. For more information and a free consultation contact Rhett at (303) 444-1618.