Protecting Your Will Against Future Challenges

You have invested a lot of thought into your estate planning, taking care to distribute your assets fairly and effectively. You definitely do not want your wishes challenged and your estate wasted in probate litigation after you pass.

Knowing the basics of a valid will can help you guard against contests based on technicality. Your attorney can also point out additional areas of likely challenges and devise a strategic approach.

Technical issues

Without proper signatures, your will may turn out to be invalid. You must sign the will yourself or have someone sign it at your instruction. Two witnesses or a notary public must see you sign. In Colorado, an unwitnessed, completely handwritten and signed will may be valid; however, proving validity can become more complicated. These technical requirements usually do not impose a hardship, so it is important not to cut any corners.

Supporting your intentions

A common type of will contest occurs when surviving relatives allege it does not represent the actual free will of the testator. If you want to make a provision you know will seem out of character or beneficiaries are likely to poorly receive, you may need to take steps to defend against later allegations of mental incapacity or undue influence.

Establishing capacity

Generally, the law does not have a high threshold for mental capacity in the context of drafting a will. You should understand the extent of your property, know who your relatives and friends are, and recognize what it means to distribute your assets a certain way. A person may possess testamentary capacity even while lacking legal capacity in a different area. Getting a medical evaluation around the time of drafting your will can help you show you knowingly intended its provisions.

Undue influence

Another way to question the testator’s intent can be to claim undue influence by a beneficiary of the will. Courts generally want a showing of psychological pressure, threats, undue dependence or some other indications that the beneficiary acted in order to take over the testator’s free will. Explaining your reasoning to an impartial witness or including your reasoning in your will can help. In addition, the beneficiary should not participate at all in any activities leading to the drafting and execution of the will.