A person may have executed a will many years, if not decades, ago. Often, that will leaves that person’s estate equally to his/her children. Then, shortly before that person’s death, the person makes major changes to his/her will. Such changes may include leaving one or more children out of the will or leaving the estate to a non-family member or a caregiver. This new will may have been executed when the decedent was suffering from Alzheimer’s, dementia, or some other mental condition that affected his/her ability to know what he/she was doing when the will was executed. One of the beneficiaries under the prior will may want to challenge/contest
It is advisable to challenge this will before it is admitted to probate by the probate court. A hearing can be held seeking the admission of a will to probate on the Monday following the tenth day after the will is filed. If the will is challenged before the hearing is held, the person seeking admission of the will to probate has the burden to prove that the decedent had testamentary capacity to execute the will. If the challenge to the will is done after the will has been admitted to probate, this burden is on the contestant to prove lack of capacity.
Having the burden of proof on the issue of testamentary capacity is significant and can be the difference between a successful and an unsuccessful challenge to a will. If you feel that someone has or will be filing a will for probate that was executed when a decedent was suffering from a mental condition, and you wish to challenge such