When a loved one who never wanted to talk about their eventual death – let alone any kind of estate planning – passes away, family members don’t often expect to find a will. Sometimes there is none. That’s when intestacy laws take over.
Other times, they find multiple wills in various stages of completion or revision. Sometimes they’re handwritten. They might be printed, but with handwritten notations and crossed-out lines. They may or may not be dated.
It can be a mess for surviving loved ones – especially if the various versions contradict one another. So if you’re in that position, where do you start?
First, it’s important to make sure you locate and preserve all the wills (and any related documents). This could require accessing a safe deposit box or home safe, looking for evidence that they consulted an estate planning professional or talking with their friends or caregivers.
The probate court must decide
Don’t throw out a document just because it looks like it was later updated or doesn’t seem to reflect your loved one’s wishes. All wills and other estate plan documents must be submitted to the local probate court for review. A judge will review them and determine which (if any) the deceased intended to be their “last will and testament” and if it meets the criteria to be legally valid.
Generally, the one with the most recent date is used as long as it’s valid and it doesn’t appear that the deceased intended a later document to replace it. When the court determines which will is valid and will be used to administer the estate, you and other relatives may have grounds to challenge it.
When can you challenge it?
Following are some reasons you may be able to challenge the validity of the will in court:
- You believe your loved one lacked “testamentary capacity” because of cognitive decline or other medical issues.
- You believe someone is guilty of “undue influence” on your loved one to include them as a beneficiary and/or administrator (like an executor or trustee).
- You believe someone else wrote or amended the document without the deceased’s knowledge or full understanding.
Challenging a will is never pleasant. It often pits family members against each other or against previously trusted caregivers. That’s why it’s crucial to get experienced legal guidance as early as possible to help protect your loved one’s wishes and your own rights and interests.