At times, it is necessary to contest a will. That is the subject of this post.
When a loved one passes away leaving behind a last will and testament, doubt may exist as to the validity of his or her final written wishes. If that happens, an heir, beneficiary, or other interested person (such as a creditor) may challenge the validity of the will. This is what is called a will contest under Utah law. A will contest also applies to other types of estate planning options such as the contest of a revocable trust, but for purposes of this article, I will be focusing on wills only.
The two primary grounds to contest a will in Utah are lack of testamentary capacity and undue influence. In other words, if the decedent lacked testamentary or mental capacity at the time that the will was prepared and signed, or was under undue influence, the will does not reflect the decedent’s final wishes and should be invalidated. A third ground for contesting the validity of the will is when the will was not signed in accordance with the legal requirements and formalities set forth under Utah law.
In order to prove that the decedent lacked testamentary capacity at the time the will was drafted, the person contesting the will (also called the ‘contestant’) must answer three questions:
1. At the time the will was drafted or signed, could the decedent identify his or her closest living relatives?
2. At the time the will was drafted or signed, was the decent able to identify his or her assets?
3. At the time the will was drafted or signed, did the decedent understand what he or she was doing?
If the actions of the decedent pass this three-part test, it is highly unlikely that a contest to the will would be successful. On the other hand, if the contestant can prove that the decedent lacked the mental capacity to answer any of these questions in the affirmative, then a challenge to the validity of the decedent’s will could be successful.
Undue influence occurs when the will of the perpetrator rather than the decedent’s will is reflected in the last will and testament. In order to prove undue influence, the contestant must prove through witness testimony or statements and other types of evidence that the will does not reflect how the decedent wished to dispose of his assets or property.
Legal Requirements and Formalities Under Utah Law
Utah has a strict list of requirements to finalize a will which includes that two witnesses are present at the time the will is signed or acknowledged or within a reasonable time after the will is signed or acknowledged. However, as of August 31, 2020, Utah gave electronic wills the same legal effects as traditional ones allowing all signings to be done by simply clicking a few buttons.
How do I contest a will?
As you prepare to contest a will, you should start by doing the following:
1. Determine if you are an interested person (such as an heir, beneficiary, or creditor) and actually have standing to challenge a will;
2. Obtain a copy of the will and any amendments to make sure you have the last version of the decedent’s will;
3. Gather any documentation that may prove the decedent was acting under undue influence or lacked testamentary capacity at the time the will was prepared and/or signed; and
4. Talk to an experienced attorney that can help you understand the process of contesting a will in Utah from beginning to end.
If you need guidance contesting a will in Utah, contact us today for a free initial consultation or schedule your appointment online at https://www.skvlegal.com/book-online.