Blog

18Dec, 08

There are a number of reasons why the validity of a will might be challenged. The process can be highly contentious and the outcome depends on the specific facts of the individual challenge. An attorney can be of invaluable assistance to you in assessing the facts of the situation, weighing the alternatives and deciding how best to proceed.

Sometimes a person is disappointed that a decedent through a will has not left that person what he believes was intended for him to receive or believes he deserved. If the disappointed party is successful in rendering the will invalid, then under New Hampshire law, the will the decedent signed prior to that invalid will is controlling, or, if there is no such Will, the decedent’s assets will be distributed intestate, meaning pursuant to the statutory rules of New Hampshire.
Before you consider challenging the validity of a will, you should speak with an attorney experienced in handling will contests and other probate court litigation. The attorney will help determine the answers to several important questions. First, if the will is invalid, will you receive more because of a prior will or under the applicable intestacy law? Second, does the current will you intend to challenge have an incontestability clause, also known as an in terrorem clause, which states that if you challenge the validity of the will you get nothing?

Wills are also challenged for failure to meet certain technical requirements as to their signing. There can also be a challenge of outright forgery claiming that the decedent did not sign the will. Many challenges to wills question whether the decedent was either under the undue influence of another when the will was signed or was mentally incompetent to enter into the will. Such analysis is very fact specific and a challenge like that should not be made until after working with an attorney to determine what, if any, potential evidence there is as to undue influence or lack of mental capacity. If a person generally knows what his assets are, who his natural heirs are, and has a reason why he wants his assets to be distributed as noted in his will, generally he would be found mentally competent to enter into such a will.

If an individual has so much control over and a confidential relationship with the person who is to sign a will to be able to substitute his own judgment for the person who is signing the will, then undue influence could be proven. However, the mere fact that the decedent has left more to his daughter who regularly took care of him in New Hampshire than his son who lived in Alaska and visited and contacted him infrequently does not show undue influence.

Once again, all of these will contests are fact driven and a legal analysis by an attorney is appropriate before making a decision to object to the validity of a will in a probate proceeding and, of course, defending against such an objection. Representing yourself without an attorney in one of these disputes is generally a major mistake and can result in you substantially prejudicing yourself in the proceedings.

J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at dmarr@nashualaw.com.