Is There Any Way A Will Would Not Be Given Effect After The Testator’s Death?
First, a testator should make certain that his or her family and friends know that there is a will and that it is kept in a safe, secure location known to the personal representative and other people close to the testator. If a will is not presented for probate, the estate will be distributed as intestate. There is no need to file a will with a governmental agency as long as these steps are taken (although some states allow for this procedure).
Assuming that a will is presented for probate, the testator’s survivors still may challenge it in court, although such challenges are relatively rare. Challenges cannot be founded on the will being unfair or because a devisee did not get what he or she wanted; there must be a legal basis for the claim. Sometimes, a will challenge is based on the testator’s mental competence at the time that he or she made the will. Generally, however, all the estate must show is that the testator was of sound mind and memory when the will was made, which often can be supported by testimony from the will’s witnesses. The will’s challenger bears the burden to prove otherwise.
Another possible challenge asserts that the testator was subjected to fraud, coercion or undue influence when he or she made the will. These claims usually follow the marriage of an elderly person to a much younger individual of strong personality. Ambiguities in the will’s text charges that the will presented for probate is a forgery or does not meet statutory requirements are other bases for will challenges.
Courts May Reject All Or Part Of A Challenged Will
If the court does find that the challenge is correct, it may choose either to disallow only those portions of the will in question or to throw out the entire document. This ability varies by state, with some states being more restrictive than others. If the court disallows the entire will, property will be distributed as an intestate estate or the court will revert to the testator’s last previous otherwise valid will, if one exists. This decision will be based on the relevant laws and the particular situation.
Changes During Probate
Certain provisions in an outdated will may be voided in probate. For example, many states provide that divorce automatically removes the ex-spouses from each other’s wills; in other states, divorce revokes the ex-spouses’ wills in their entirety. A law executed under the laws of one state may contain provisions that are not enforceable after a testator moves to another jurisdiction. Laws of this sort underline the importance of keeping wills updated and synchronized with current law.
Was The Will Documented Correctly?
In some cases, a person will try to make a will verbally or in his or her own handwriting. So-called oral and holographic wills have extremely limited validity in a few jurisdictions. An oral will is usually only valid if it’s made by a person in the military or the merchant marine who is in active service at the time that the will is made and does not have time to make a written will. Therefore, an oral will should not be relied upon unless subsequently transferred into a valid written form. Holographic wills are only recognized in about 25 states, and many of these laws still require certain formalities such as a witnessed signature or inclusion of certain provisions. Therefore, oral and handwritten wills are to be avoided, and would-be testators should make reference to the formal statutory requirements for wills to ensure validity.
Have Questions About Your Will? Contact Me Today.
I am Charles M. Hall, and I can answer your will-related questions and help you draft or amend your own will. To get started, contact my firm, Charles M. Hall, P.C., in Atlanta by calling 404-865-1966.