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When a Will is Contested in West Virginia

A will is an estate planning document which acts to properly ensure the wishes of the party executing the will are followed and that desired transfers are carried out regarding their property in the event of their death. However, there are other important factors to consider when ensuring the proper documentation is in place and validly executed. First and foremost, careful estate planning is the key to ensuring the validity of a will in the event it is contested. If estate planning documents are poorly executed and the document is challenged by the appropriate party, it may be ultimately revoked unless the challenge is successfully defended.

Common Grounds for Challenging

An individual who decides to challenge an estate planning document may do so for any number of reasons. Perhaps he or she is not satisfied with the inheritance designated to them, or maybe family members fear their deceased loved one did not execute the document in question freely and voluntarily. These scenarios (and countless others) can lead to a will being challenged, whether or not the challenge is reasonable. Some of the more common challenges include the following.

The individual’s mental capacity is in question at the time they executed the document. In this case, age is one factor–those under the age of 18 are said to lack the capacity to validly execute a will. For those over the age of 18, the challenger must prove the testator did not understand the consequences of his or her decisions in executing the document in question in order to prove a lack of mental capacity. In order to prove capacity, requirements such as the individual’s understanding the extent and value of the relevant property, their knowledge of who the beneficiaries are, the disposition made by the will, and how these elements relate to one another must be met.

The document was not properly executed according to legal requirements. This can include the document being witnessed by individuals who were inappropriate for the task or insufficient in number, or failing to contain certain provisions legally required to be included in the document. Not every jurisdiction maintains a strict execution requirement, but certain additional steps may be taken in order to provide further authentication evidence of a document, and to ensure that any challenge to the same will not succeed.

There is evidence of fraud, forgery, coercion, or deception. This usually involves some claim of undue influence over the individual by a third party who benefits from a provision contained within the document. When this argument is made, it is also generally accompanied by evidence that the testator lacked free will due to influence exerted over them.

Defense of Estate Planning Documents

While these are some common challenges to a will or other estate planning document, others do exist. If you are seeking assistance in defending a challenge to a will, contacting an experienced attorney to discuss the matter is greatly beneficial. Contact the attorneys at Hendrickson & Long PLLC today to discuss your rights and any options available to you by law. We serve clients from our office in Charleston, West Virginia.