Estate planning is a vehicle for controlling one's assets and directing the distribution to the intended heirs and beneficiaries upon death. Unfortunately, we can't control everything that happens after we die. Questions can arise as to the integrity of an estate plan and this is especially true when drastic changes are made to an estate plan late in life or upon one's deathbed. When such changes bequeath a large amount of assets to a friend or a caregiver, or when one beneficiary is bequeathed the lion's share of the inheritance, it can lead to litigation. If you believe that a loved one's will is invalid, you may have grounds to contest it. However, proving that a will is invalid is a serious undertaking and should not be taken lightly.
Those with legal standing to contest a will must have a close connection to the will; for example, the person must either be a beneficiary in the will or someone who would inherit from the testator if the will was proven to be invalid. The most common grounds for contesting a will include:
Lack of testamentary capacity – Lack of testamentary capacity is one of the most common grounds for contesting a will. When an individual is suffering from Alzheimer's disease, or lacked mental capacity because they were on their deathbed, or suffering from a severe mental illness, they may have lacked the mental capacity to understand how they were bequeathing their assets and to whom. In such cases it will probably be necessary to obtain medical evidence such as testimony from a neurologist to show lack of capacity.
Fraud – A will can be voided in part or entirely if it was executed under fraudulent means. For example, the testator could disinherit a beneficiary entirely because he or she was presented with false information intended to get him or her to change the will. Also, a testator can sign a will without realizing the document they are signing is a will.
Undue influence – The court can declare a will invalid if it can be proven that it was executed under undue influence. In cases such as these, a person in a position of trust such as a caregiver or an adult child influences the testator to the extent that the testator bequeaths a disproportionate share to the person of trust. This can especially happen when the testator is suffering from cognitive impairment.
Not Executed Properly – Each state has its own set of rules and procedures for executing a will and a will can be deemed invalid if it was not executed or witnessed properly. For example, in Nevada, the signing of a will must be witnesses by two witnesses.
Contesting a will is another term for probate litigation or estate litigation. If a will is successfully contested, the court may decide to reinstate an earlier will, or if there is no earlier will, the estate may pass under Nevada's intestate succession laws. Also, the court may decide that only a portion of the will is invalid.
Aside from contesting an estate planning document, probate litigation can also arise when a beneficiary has a dispute with a personal representative. If a personal representative has mismanaged the estate or used estate funds for personal benefit, or comingled funds, or otherwise acted unethically and breached their fiduciary duty, beneficiaries can take legal action against the personal representative.
If you believe that you have grounds to contest a will or if you believe the personal representative has breached their fiduciary duty, or if you are a personal representative who needs to defend an estate, you should speak with an experienced Las Vegas probate attorney from
Roland Law Firm.