We often receive calls asking about challenging a will in NH. These calls ask if it can be done, by whom, when and whether it has to go to court for the challenge to take place. We also receive questions relating to whether a will can be challenged BEFORE a person has passed on. This article will discuss the challenges and how to prevent them as well if you are the person creating the Will.
Challenges due to Validity
NH requires that certain formalities exist for a Will to be valid. Read our article here for those details. Therefore, if the document was not properly executed by means of the required age, signatures, witnesses or mental state, it can be invalidated. That would mean the document is tossed out as if it never existed because it wasn’t legally binding. Courts do not like to do this. Judges like to respect a person’s wishes as much as possible so if there is a way they can allow the document to stand, he or she will do so.
Challenges due to State of Mind
NH requires that the author of the Will be of sound mind and of legal age. If someone challenging a will in NH brings forth information that evidences that the person was incapable of making this decision, there can be a cause for challenge. Let’s look at an example.
Lisa was in the hospital after a serious car accident. While she was in and out of consciousness, her new husband presented a Will for her signature. Lisa signed and it was witnessed as required by NH law. Lisa died the following day unexpectedly.
After Lisa’s death, her two children realize that her Will made no mention of either of them. The document only referenced her husband and his daughter. Both of her children believe Lisa was taken advantage of while she was succumbing to her injuries.
How to Fight with State of Mind Issue
Lisa’s children are going to want to hire an experienced attorney who will work to address some of the following issues:
- What was Lisa’s mental and physical state when she signed the document? Do her doctors state that she was alert and understanding? What medications was she on? Was she coherent, lucid?
- Does the document contain all other legal requirements absent the signature and witnessing?
This is going to be a complex issue although it looks simple at first. It appears at first glance that Lisa shouldn’t have been allowed to sign given her medical situation. However, this may not be as cut and dry as that. If her doctors testify that she was alert, coherent and expected to make a full recovery but died suddenly, this is a different scenario than if she was heavily medicated and not expected to live. This situation is very fact dependent, as are most cases.
The attorney can also determine where the document originated. Was it previously created and only awaiting signatures? If another lawyer drew up the document, maybe he can shed some light on why it had not been signed.
Many times family members are not notified that they are being left out of a person’s last wishes. It is always smart to list the heirs who are meant to be left out so there is less ambiguity. This will not negate any and all challenges but it does limit the argument of it being an oversight due to her medical condition. If Lisa had stated, for example, that she expressly leaves out her two biological children (and names each), it is clearer as to her intent. However, state of mind can still be challenged under the right set of circumstances.
As you can see, there are so many questions to ask about this Will. Where did it come from? Who created it with Lisa? Why wasn’t it signed then? Why weren’t her children even mentioned when her new husband and his daughter were expressly mentioned? These questions, and more, are the reasons to have an experienced estate attorney working on your Will in the beginning or helping you if you will be challenging a will in NH.
Contact Jason by visiting his contact page here. Jason has many years of experience working with families to help build solid plans and to find solutions to questions after the fact.