Most people make provisions for the passing of their estate in a last will and testament. If correctly drafted, this will is valid, and it controls the disposition of assets. This means that in formal probate the probate judge will accept the will and the personal representative will follow it.
Sometimes a will is invalid, however. A disappointed heir might challenge the will in what’s called a will contest, and a judge will hear evidence on the matter. When is a will invalid? And do you have grounds for challenging it? Our Honolulu probate attorney looks at several situations where a will is invalid.
The Will Did Not Follow the Formalities
Hawaii Revised Statutes § 560:2-502 lays out the requirements for a will:
- It must be in writing.
- The person creating the will (the testator) must sign it, or the testator must direct someone to sign for him.
- Two witnesses must sign after witnessing the testator sign or after the testator acknowledges the will.
There is an exception for holographic wills, meaning wills written by the testator. They are valid if they are signed and material portions are written by the testator.
If the will does not meet these requirements, you can challenge it. However, another law (560:2-503) does allow the probate court to accept a writing not executed in strict compliance if there is clear and convincing evidence the writing was intended to be a will.
The Testator Lacked Capacity
For a will to be valid, the testator must have had legal capacity. Hawaii Revised Statutes § 560:2-501 lays out these requirements: must be at least 18 years of age and be “of sound mind.”
One common situation where a testator lacks capacity is when they are suffering from dementia. They probably don’t fully understand what they are doing or the full extent of their estate, so a judge will not accept a will created when someone is suffering from this condition.
Another clear example is a will created by someone under 18.
The Testator Signed Under Duress or Fraud
Another common situation we see is an elderly testator either creating a will or revising it to benefit a caretaker. For example, an elderly man might revise a will to cut out his children and leave everything to his nurse. Other testators alter a will to favor the child who took care of them.
Changing a will does not necessarily make it invalid—even if you are old when doing so. However, we need to look closely at the facts, because a will is invalid if signed under duress. For example, an elderly testator might have been threatened by withholding food or medicine, or the caretaker used violence.
Fraud is another concern. A testator might be given paperwork and told it relates to car insurance or Social Security benefits. They sign not knowing they are signing an amendment to their will. This type of fraudulent procurement makes a will invalid.
We Can Help with Will Contests
At Holcomb Law, LLC, our Honolulu probate attorney can represent either disappointed heirs or the personal representative in a probate hearing. Contact us today to discuss will contests or any other issue you have.