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It is believed that 99 percent of wills successfully pass through probate. Typically, a successful challenge is brought about by a spouse, and the most successful reason to void a will relates to lack of testamentary capacity. A testator is the person who creates a will, and only those over the age of 18 and of sound mind are allowed to create a will.
Some exceptions may be made for those under the age of 18 if they have served in the military or are married. When determining if an individual has testamentary capacity, the court will look to see if the testator understood the value of property being given away and who it was going to. Even if the testator is of sound mind, a will could be voided if he or she was coerced to include certain beneficiaries or exclude others from the will.
A valid will must be signed in the presence of witnesses. If there are no witnesses or the witnesses are heirs or beneficiaries to the estate, some or all of the will could be voided. If an outdated will is presented during probate, the newer version of the will may trump that version if it can be proven that the new copy is legitimate.
The use of wills can give an individual more control over who receives their assets or how those assets are to be structured upon that person's passing. Anyone who is considering a will as an estate planning tool may wish to talk to an estate planning attorney. An attorney may be able to talk to an individual about witness requirements and other guidelines that must be met. Meeting these guidelines may avoid any challenges to the will in the future.
