26th Jun 2014

Part 1.

Before learning how to contest a will, it is necessary to understand what constitutes a valid will. The Utah State Court website www.utcourts.gov has a section titled “How to Make a Will,” where it specifies the person desiring to make a will should: “1. Identify itself as a will; 2. Expressly revoke all previous wills and codicils (Even if there are none); 3. Appoint a personal representative; 4. Appoint a guardian where minor children are (or may be) involved; 5. Provide a formula or method for distributing your property.

 

Your will may also want to include information such as: Provisions leaving specific items to specific people; Wishes concerning funeral and burial arrangements; Waiving of any requirement of a bond for the personal representative (Source: Utah State Bar)

Additionally, the will should be signed by the testator (The person making the will) or in the testator’s name by an individual in the testator’s presence. It should also be signed by a minimum of two individuals who have signed after witnessing either the signing of the will or the testator’s acknowledgement of the will. For more details on these and other requirements, please refer to Utah Uniform Probate Code: 75-2-501.”

 

Sounds simple enough, right?  Well there are additional requirements, as listed in the Utah Uniform Probate Code, which if not followed will make a successful Will contest simple.  For example, the testator/testatrix has to be at least 18 years of age, has to be of sound and disposing mind (you understand the property that you own, it’s value, and to whom you will be leaving your belongings), the witnesses cannot be someone who is a beneficiary under the Will, and unless the Will is a holographic Will, it needs to be attested to by both the testator and the witnesses before a notary public. (The testator/testatrix is the person making the Will – a holographic will is a Will entirely written, dated and signed by the testator/testatrix in his/her own handwriting).

 

 

Part 2.  What are the grounds for contesting a will?

 

When a will is successfully contested, the testator’s/testatrix’s prior will is then considered to be  his/her will.  If there was no prior will, or if the will is lost and no one has an executed, and valid copy of the prior Will, the testator is treated as if he/she died intestate (without a will.)  If the person is deemed to have died without a valid Will, the court will then distribute the estate to those who would take the estate assets on an intestacy basis.

 

A noted previously, a will has to be in writing, in the correct form, and executed according to the laws of the State, in order to be valid.  Most of the cases contesting wills, emanate from issues dealing with improper form or execution of a will, and the majority of the time, involve wills that were prepared by individuals instead of attorneys.

As pointed out before, a person can type out a will on their computer, download a form from the Internet, or copy a form from a book.  Since the law is very strict about the form and execution of wills, many of the successful will contests are set aside because of mistakes in the form, or because the testator downloaded a will online, guaranteed to be valid in all 50 states, when in fact that was not the case, or because of improper execution.

 

Additional information on execution and form

1. Order of signing wills;

2. Lost wills;

3. Effective date of will;

4. Obtaining copies of wills;

5. Revoked wills;

6. Where is the will signed;

7. Contracts to make wills;

8. Beneficiaries as witnesses to will;

9.  Lawyer who prepared will as beneficiary;

10.Replacing pages in will.

 

Part 3. Contesting a will, testamentary capacity.

 

In order to make a will, the testator must have testamentary capacity.  That means that he/she must know what he/she is doing and also know who the natural recipients of the estate would be. This also requires the testator/testatrix be at least 18 years of age.  There are no limits prohibiting execution of a will after a certain age, so long as the person making the will understands what they are doing, and has the mental capacity to know what he/she is doing when he/she made the will.  If it can be demonstrated that the testator/testatrix did not understand what they were doing, or had a mental or emotional deficiency (advanced stages of Alzheimer disease, or other mental deficiencies) the will can be set aside.

 

To have “testamentary capacity” the testator must, at the time of the execution of the will, have sufficient mental ability to: 1. understand the business in which he is engaged; 2. understand the effect of his act in making the will; 3. know the general nature and extent of his property; 4. recognize his next of kin and the natural objects of his bounty; and, 5. have sufficient memory to collect in his/her mind the elements of the business to be transacted and to hold them long enough to perceive at least their obvious relation to each other and to form a reasonable judgment.

 

Testamentary capacity is never presumed, due to the statutory requirements that a person executing a will be of “sound mind.”  A self-proving will, with proper affidavits, will supply “some evidence”of testamentary capacity and if otherwise unobjected to, the will may be admitted to probate without further evidence on this issue. The affidavit may, of course, be rebutted by other evidence of lack of capacity.  “Testamentary capacity” is different from the capacity to contract because a person is presumed to have sufficient capacity to enter into a contract but no such presumption exist for the capacity to make a will.

 

In a like manner, if it can be established that the person making the will was under undue force, coercion, or undue influence from someone who would benefit from the contents of the will, the will may be declared invalid by the court. Undue influence generally means that the testator is so controlled and dominated by another that he/she can’t make his/her will the way he/she wants to but has to make it the way the person who is a dominating him/her wants him/her to make the will.  This can occur if the caretaker, for example, has the person on medications which affect their ability to reason or rationally consider who their normal bounty would otherwise be, but for the fraudulent or undue influence.

 

There are general suspicions when either a family, or non-family caretaker, ends with a greater portion of the persons assets than would normally be expected. Whatever destroys free will and causes a person to do something he would not do if left to himself/herself.  For example, a strong willed family member might be found to have used undue influence on an elderly person’s drawing up of a will.

 

 

Part 4. Contesting a will, Forgery – revoked will

 

As obvious as it may sound, if a will is forged, it cannot be the will of the testator.  What if the testator cannot sign their own name due to physical limitations?  So long as the person has the testamentary capacity, someone else may sign the will on behalf of the testator, as long as the testator is present, and has acknowledged he/she understands what is happening, has appropriate testamentary capacity, and approves the process.

 

How do you revoke a valid will?  There are several ways to revoke your will.  1. You can change, add or even revoke your will any time before your death, as long as you are physically and mentally competent to make the change.  An amendment to your will is called a codicil.  You cannot simply cross out old provision in your will and scribble in new one.  The same formalities are necessary to change your will as to execute the will originally. 2. Another way to revoke your will is to write a new one.  If you do execute a new one, it is suggested that you write “REVOKED” and sign every page of the revoked will.  It makes sense to keep this revoked will, with the revoked language so no one can say it was simply a lost will, and attempt to probate your former will.  3.  Yet, another method is to physically tear up your old will in front of your lawyer and witnesses to your new will.

 

Part 5. Contesting a will – lost will

 

One of the problems that arises when probating a lost will is that there is a presumption that the will has been revoked.  When a will was last known to be in the decedent’s possession and cannot be located after death, a rebuttable presumption of revocation arises.  This presumption is based on the fact that one of the methods by which a will can be revoked is by destroying the original copy of the will.  If the will can’t be located, it is presumed that the testator revoked the will by destroying it.

 

In order to overcome the presumption of revocation, the proponent of the will has the burden to prove that the testator continued to have affection for beneficiaries of the lost will.  If the continued affection is proven and there is no evidence to show the decedent’s dissatisfaction with the will or that the decedent had any desire to cancel or change the will, the proof will generally be sufficient for the court to admit the lost will to probate.

If you have distributed copies of your prior will to anyone else, such as your personal representative, or children, you should retrieve all of the copies of the revoked will and destroy them.

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