Grounds for Contesting a Last Will and Testament Explained by LA Probate Law
In order to challenge a will, the opponent must have standing and must establish grounds for the challenge. If successfully contested, a will may be rejected by a probate court. If a person’s last will and testament is declared invalid, the decedent’s estate will pass according to the laws of intestate succession, and all property will be distributed as if the decedent had left no will. Unfortunately this is an increasingly popular form of elder abuse. Unscrupulous parties will frequently convince an elderly or incompetent person to write an estate plan, or change their existing one, to make the unscrupulous person the beneficiary of the elderly person’s estate. Sometimes the victim is convinced to sign a deed or transfer assets. What is not commonly known (even among many estate planners) is that certain estate planning decisions are presumed fraudulent under law. LA Probate Law is familiar with statutory presumptions and have challenged numerous estate plans on the basis of fraud, forgery, undue influence and impaired capacity.
Showing Improper Execution of the Will
What amounts to proper execution, or signing, of a will varies from state to state. Thus, the requirements for showing that a will was improperly executed will depend upon the state law of the jurisdiction. A person “falsely makes” a written instrument when he makes or draws a complete written instrument in its entirety, or an incomplete written instrument, which purports to be an authentic creation of its ostensible maker or drawer, but which is not such either because the ostensible maker or drawer is fictitious or because, if real, he did not authorize the making or drawing thereof explains LA Probate Law. For example, the testator may not have signed the will, or the testator’s signature may not have been properly witnessed pursuant to the statutory requirements. If a will was not properly executed, it may be susceptible to a successful will contest. The intent must be to defraud another, but it is not requisite that any one should have been injured. It is sufficient that the instrument forged might have proved prejudicial.
Proof of Fraud
With respect to fraud, it must be shown that the testator relied on false statements in making or changing the will. Generally, this means showing that a beneficiary under the will led the testator into an erroneous belief concerning the disposition of his or her property and that the testator changed his or her will in reliance on that false representation. The best strategy is almost always to challenge these arrangements while the victim is still alive. Upon an appropriate petition, the probate court is empowered to void asset transfers and cancel estate planning documents that were created improperly. Forged Wills can arise from family problems, as do the other kinds of disputed Wills. In these situations there may be nobody to challenge the Will or make a claim regarding the true wishes of the deceased says LA Probate Law. In order to contest a will on the ground of undue influence, it must be shown that the testator’s free will was destroyed and, as a result, the testator did something contrary to his or her true desires. It does not have to be shown that the testator was of unsound mind to prove undue influence. Undue influence is a separate ground for contesting a will.
Burdens of Proof
It is usually the duty of the proponent of a will (i.e., the person asking that the will be accepted for probate) to prove that the essential statutory elements of a proper will have been met. By being the party asking for a change in the present situation, you will have the burden of convincing the Court that you are right and your opponent is wrong. Consequently, all your opponent has to do is wait for you to fail to make your case, to make a mistake, etc., and they will have won.On the other hand, in some jurisdictions, the testator is presumed to have been of sound mind, and the burden will be on the opponent of the will to prove unsound mind. Additionally, it is usually the burden of the opponent of a will to prove fraud or undue influence. Usually, the essential statutory elements include, at the least, proper execution of the will and sound mind on the part of the testator. Thus, where the statutory elements include those requirements, the burden of proving them are on the proponent of the will.
A person must have standing to contest a will. This means that the person must have some beneficial interest that would be lost if the will were allowed. Assets must normally be recovered through a civil lawsuit or action. In some instances, the probate court has expedited procedures that allow asset recovery for the victims of elder abuse says LA Probate Law. Usually, this means the challenger would stand to inherit, or would inherit more, if not for the contested will. State laws vary concerning when a will may be challenged; however, in most jurisdictions, a will contest may not be commenced until after the testator has died. If the victim is not able to protect himself, the probate court is empowered to appoint a conservator to pursue asset recovery. Interested parties such as heirs and beneficiaries are also entitled to seek court intervention.