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What are common reasons for people to challenge a last will?

Creating a last will or estate plan is a way to ensure that your loved ones will have access to your assets after you die, thereby providing them with security. It could also be a way to guide the use and allocation of your assets, which is a way for you to create a legacy for yourself.

Sadly, some of the people who go through the trouble of creating a comprehensive estate plan or simply allocating certain assets to family members and loved ones in a last will will have their wishes subverted by the very people whom they hoped to protect.

People can and do challenge last wills and estate plans all the time in New Mexico. Educating yourself about the most common reasons that people bring these challenges could reduce the risk of your estate getting dragged through probate by someone who doesn't agree with your estate plan.

Surprises and disappointment are common reasons to challenge a will

Perhaps you have a loved one who compulsively gambles and you don't want to feed that habit. Maybe you had a falling-out with one of your children and do not intend to leave them any substantial assets.

While it may be uncomfortable to do so, you should make sure that everyone in your family, even the people you disinherit, know your intentions. Otherwise, the potential exists for people who feel disappointed to use that as a reason to challenge your estate plan.

They may claim that there is no reason to believe you intended to cut them out of the will or to reduce their inheritance when compared with other family members. The more upfront and direct you are with your intentions, the less likely it is that a surprise in the last will will lead to someone challenging your wishes in court.

Concern about your mental state at the time of signing could influence a challenge

Generally speaking, probate law protects the wishes of the testator or person creating the estate plan. However, the law also considers the rights of family members and the potential influence they could have on older adults or people with serious medical conditions.

Lack of testamentary capacity is a commonly cited concern among people challenging a last will. If you are well into your golden years or have a medical condition like Alzheimer's that will impact your cognitive functions, family members may point to that as evidence that you did not know what you were doing at the time that you created the last will or estate plan.

Challenges can also result if one person pressures you to change your wishes

Undue influence is another common reason that people bring a challenge against a last will or estate plan. Children, spouses and medical caregivers can all face allegations of exerting undue influence on a testator. In some cases, a caregiver or spouse may refuse to allow other family members to see someone as they age, thereby alienating them from their loved ones and convincing them to disinherit those individuals.

Other times, the threats of inadequate care could be levied against an individual who has become dependent on a child, spouse or caregiver. You can protect yourself against this concern by creating your estate plan early in life, disclosing its contents to your loved ones and revising the documents occasionally as your family and life circumstances change. The longer your wishes have been on record, the harder it will be for people to challenge them.

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