Challenging a will can be difficult, with proof required

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Mom always told you she would leave everything to you and your sister. After mom dies, you discover she wrote a new will, leaving everything to her housekeeper.

Is there anything you can do?

If you believe mom's will is not valid, you might be able to challenge it, but proving a will is invalid is difficult and the process should be undertaken only if you are sure there is something wrong.

Only certain people can contest a will. You must be an "interested party." As a natural heir, you are an interested party. You are usually an "interested party" if you receive a legal notice that the will is being probated.

But you can't contest the will just because you believe the housekeeper was a terrible person who didn't deserve anything from mom's estate.

You cannot contest a will because you think the distribution is unfair. There must be evidence that something is wrong with the will.

The following are the situations in which a will may be contested:

Mental incapacity. This would apply if you believe mom did not have the mental capacity to write the will. The best way to prove this is with a statement from a doctor who examined mom around the time she wrote the will.

You may also use medical records and other witnesses who were around at the time.

Undue influence. If you believe the housekeeper exerted undue influence over mom and induced her to change the distribution under her will, you may contest the will based on undue influence. You might be required to prove the person exerted undue influence, or if the person had a fiduciary relationship with mom, that person might have to prove that there was no undue influence.

People who might have a fiduciary relationship include a child, a spouse, or someone with a power of attorney.

Fraud. Arguing that mom was fraudulently induced into signing her will is another way to contest a will. Fraud occurred if mom signed the will without realizing it was a will.

It could also happen if someone gave mom misinformation that caused her to change the distribution in the will.

Not executed properly. Finally, a will may be invalid if it was not executed properly. In South Carolina, the signing of the will must be witnessed by independent witnesses. If the document was not witnessed properly, it might be invalid.

If you are successful in invalidating a will, the court may reinstate a prior will. If there is no earlier will, the estate may pass under the South Carolina's intestate succession laws.

Another alternative is for the court to invalidate just the portion of the will that is invalid, leaving the rest intact.

It is always a good idea to consult with a qualified elder law and estate planning attorney.

Brian T. Treacy is an elder law and estate planning attorney with an office in Bluffton. hiltonheadelderlaw.com

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