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Challenging a will is difficult

An Arizonians' last will and testament is the conclusive word on the distribution of their property and assets in estate planning. However, a will contest is a difficult and stressful process.

A potential heir may file these challenges if they believe that a family member or friend's will does not accurately reflect their final wishes. First, the challenger must determine if they have the status, known as standing, to make this contest. A person or an entity such as a bank or charity may have standing in these actions if they will be affected by the challenge's outcome.

An individual has standing if they are an intestate heir or a beneficiary named in a person's earlier will and they are contesting a subsequently-issued will. An entity has standing if it was named as a beneficiary or fiduciary in an earlier version of the will.

There is a limited time to file a contest. This helps assure finality so that the decedent's assets can be distributed without fear of a future challenge.

A person must have legal reasons for the challenge. First, the will was executed without meeting the proper formalities or requirements. Next, the decedent did not have the required mental capacity to make a will. Third, there was undue influence on the person making the will. Finally, the will was obtained through fraud.

Proving each of these reasons may be difficult and requires sufficient evidence. Three types of facts increase the likelihood of a successful challenge.

A testator who wrote their own will or used a form may have overlooked some of the legal formalities. These homemade wills may not address every contingency that may happen.

The testator's isolation from friends and family by the person who inherits the most may also increase the chances of success. Arguably, it may be invalidated because of undue influence.

Finally, it usually difficult to prove that the testator lacked the required capacity at the exact time they signed the will. However, there could be medical or other evidence that indicates that the testator did not have the required mental ability to make the will.

A qualified estates attorney can help with the drafting of a valid will that complies with Arizona law. A lawyer can advise challengers with obtaining evidence and reviewing their options.

Source: The Balance, "Learn how to contest a will," By Julie Garber, Accessed Nov. 6, 2017

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