A Personal Approach To Resolving Your Estate Planning & Litigation Concerns

What you need to know about challenging a will

by | Jun 27, 2019 | Estate Litigation, Wills & Trusts

Your grandmother always said she would leave you a substantial inheritance. But then when the attorney read her Nevada will after she died, it failed to mention you. Instead, she left almost her entire estate to your cousin who had taken care of her the last year of her life. Can you challenge the will?

The answer is yes. But not because you are disappointed at not receiving your promised inheritance. Mere disappointment or anger over failing to receive an expected inheritance never constitutes a valid ground for challenging someone’s will. In your case, however, your cousin could have exerted undue influence over your grandmother, and that represents one of the classic grounds for successfully challenging someone’s will.

Undue influence

Undue influence occurs when someone, often a caregiver, exerts so much power and influence over someone else that the provisions of the will strongly imply that they represent the caregiver’s wishes, not those of the decedent.

Ask yourself the following questions about your cousin:

  • Did (s)he try to isolate your grandmother from you and other family members and friends?
  • Did (s)he always answer your grandmother’s phone instead of letting her answer it herself?
  • Did (s)he often tell you and other family members that your grandmother was resting and could not talk to them when they called or came to visit?
  • Did (s)he ask any of you to stop visiting your grandmother because your visits upset her?
  • Was (s)he the one in charge of giving your grandmother her medications?
  • Did she pay your grandmother’s bills and give her other financial advice in addition to physically caring for her?

If you answered yes to any of these questions, the possibility exists that your cousin did indeed exert undue influence over your grandmother. The more yes answers, the greater the possibility.

Testamentary capacity

Testamentary capacity is another theory under which you might successfully challenge your grandmother’s will, especially if she was quite elderly or ill at the time she made it. But remember, testamentary capacity is different from general mental capacity. To have the requisite testamentary capacity to make her will, your grandmother would have needed to know the following:

  • That she was, in fact, making her last will and testament
  • That she had a general idea of the assets she owned and how much they were worth
  • That she understood who her family members were and who the law presumed she would leave bequests to
  • That she understood who all she was leaving her assets to and their approximate respective values
  • That she generally understood how her bequests would affect the rest of her family members, whether or not she specifically mentioned them in her will

You should also remember that challenging someone’s will represents a serious undertaking, and one that could tear your family apart. You need to decide whether or not you are prepared to deal with the animosity a will challenge inevitably causes. Even if you successfully challenge your grandmother’s will and ultimately receive the inheritance to which you feel entitled, some of your family members, especially your cousin, may never speak to you again.