Parker, Pollard, Wilton, and Peaden - Attorneys at Law

Is Your Loved One’s Will Legally Binding?

Meredith L. Yoder Written by:

In the months after a loved one’s death, procedures and deadlines are far from the minds of the family. Unfortunately however, a death in the family often leads to legal disputes over the deceased’s property. Lean economic times and the increased availability of legal forms on the internet have led more and more people to attempt to draft wills, trusts and powers of attorney without the assistance of a lawyer. In this climate, the potential for disputes increases.

Even if the deceased has left a will, disputes can arise as to the will’s validity. To be legally acceptable, a will must be signed by the deceased (the testator). It must also be signed by two witnesses, unless the testator writes every word in his or her own handwriting. Most importantly, the testator must have sufficient mental capacity. A testator must understand that a will is being made, what property is held, and who family members are. If any of these elements is missing, a court can find the will invalid.

In addition, a will can be deemed invalid if it seems likely that the testator wished to do one thing, but a third person coerced or unduly influenced him or her to do something else. The coercion does not have to be physical, and usually is not. Rather, the typical case of undue influence involves a testator who is alert but feeble, and a person in a position of trust—a relative, friend, or spiritual advisor—who takes advantage of the person’s frailty, convincing them to change the will.

Finally, even if a will is valid, the executor under the will has an obligation to administer the estate fairly with respect to the persons named in such will. If an executor abuses such power, or favors certain interests over others, then such executor may be liable for any harm done.

Whether you are the beneficiary under a will that is being challenged, or your loved one has left a questionable will, it is important that you seek the advice of a qualified attorney. Most will challenges must be filed within one year after the will is probated, and even shorter deadlines must be observed in some cases. Similarly, if an agent under a power of attorney, an executor, or a trustee has acted improperly, the law imposes short deadlines for seeking relief.

The Estate Litigation Team at Parker, Pollard, Wilton & Peaden has extensive experience in these types of disputes—from challenging forged wills to defending claims of undue influence.  If you find yourself in a similar situation, we invite you to contact us for a consultation.