Lack of Testamentary Capacity
The most common difficulty started in Surrogate’s Court is the claims that the developer (ie testator) lacked the capability to make a will. Essentially, this indicates that the testator of the last will and testimony was not in a sound frame of mind when he executed the instrument. The testator must have the capability to make a will, there is no other way around it. This indicates that the testator was mindful, not affected by any intoxication, psychological disturbance, or external and medical impacts. In a lack of capacity challenge, the celebration objecting to the purported will claims that the testator was not in the right state of mind when they made and carried out the document.
When objecting to a will based on absence of testamentary grounds, the celebration ought to be prepared to prove that the testator did not have the psychological personality to make a conscious and reasonable decision, and did not totally comprehend the consequences of developing the said document. The Court will completely analyze the decedent’s medical records in making its choice.
Failure to Abide With Will Formalities
Another typical ground for a contest is the claims that the will was not properly executed. Each state has its own requirements as to exactly what rules and practices have to be implemented during the formula of the will. In Temecula, California, and similar to numerous other states, a last will and testament should be (1) in writing; (2) signed by two witnesses; and (3) declared by the testator to the witnesses that they are signing a will.
If the challenger can establish that will execution failed to abide by state law, the instrument will be overruled and the whole estate of the deceased will pass as if there was never ever will in place. In order to identify exactly what took place at the will finalizing, the challenger’s attorney normally demands a 1404 deposition, in which counsel questions the witnesses to the will under oath and on record to determine the exact practices included during the finalizing of the will. After the 1404, the judge appointed to the case evaluates the transcript of the depositions and makes a choice on whether the will must be declared void or if the events are so uncertain that the case should proceed to trial.
Scams & Undue Impact
The last and most significant challenge against a will is exactly what is called scams or excessive impact. Scams can be as obvious as a trusted good friend asking the testator to sign a pre-constructed will without the testator being mindful of what they are signing. In the case of A difficulty based on undue influence is not a simple difficulty. Substantial proof and statements from witnesses who understood the testator are needed to prove such an allegation.
Make sure to study probate and you will soon discover why these issues arise.