Although every estate is unique, one of the motivations for creating an estate plan is so that loved ones aren’t faced with any real surprises during the probate of an estate. What happens though if you learn that a recently deceased loved one made a death bed Will at the last minute that changed the terms of his/her previous Will? Is that Will valid? Can you contest the deathbed Will? An Oklahoma City probate attorney at Parman & Easterday discusses contesting a deathbed Will.
What Exactly Is Meant by a “Deathbed” Will?
For most people, a Last Will and Testament serves as the foundation of their estate plan. A Will has the ability to distribute a Testator’s entire estate and allows the Testator to decide who will oversee the administration of the estate. Given the important nature of a Will, it should ideally be created under the guidance of an experienced estate planning attorney. Sometimes, however, an individual purports to create what is referred to as a “deathbed” Will.
Just as the name implies, a death bed Will refers to a Will that is written down and executed (or spoken in the case of an oral Will) when the Testator knows that death is imminent. It may be that the Testator doesn’t have a Will and doesn’t want to die without one. In that case, the deathbed Will serves as the only Will ever created by the Testator. It may also be the case though that a death bed Will revokes a previously executed Will. When this is the case it often leads to someone challenging the Will because the deathbed Will disinherits a previous beneficiary and/or makes a significant gift to an unexpected beneficiary.
Can I Contest a Deathbed Will?
If you learn that a family member or close loved one created a deathbed Will, can you contest that Will? To answer that question you need to ask several other questions.
- Do you have standing? “Standing” is a legal term that refers to your right to bring a legal action. In this case, you must be an “interested person” to initiate a Will contest. Typically, that means you must be a legal heir to the estate, a beneficiary in the current or a previous Will, or a creditor of the estate. If you have standing, you have the legal right to challenge the Will.
- Is a deathbed Will ever valid? In Oklahoma, a Will must be in writing (except under very narrow circumstances discussed below) and witnessed by two disinterested witnesses. A handwritten Will can be valid if it has been written in its entirety by the Testator’s handwriting. No witnesses or notaries are required in that case. An oral Will (legally referred to as a “nuncupative” Will) is only valid in Oklahoma when made by a person in military service and in fear of immediate death related to the military service. The estate cannot exceed $1,000 and cannot include real estate. At least two witnesses must be able to establish not only that an oral Will was made, but also the contents of the Will. In short, a deathbed Will can be valid in Oklahoma.
- Do you have the legal grounds to contest the Will? Because a deathbed Will is not invalid on its face, you will have to have legal grounds on which to invalid the Will. In Oklahoma, the grounds on which a Will may be declared invalid include:
- There is a subsequent valid Will
- Someone exercised undue influence over the Testator
- The Will is fraudulent or is a product of fraud
- The Will is ambiguous and be interpreted in more than one way
- The Testator lacked the requisite testamentary capacity at the time the Will was executed.
The most common grounds used to contest a deathbed Will are lack of testamentary capacity or undue influence. To prove lack of testamentary capacity, you prove that the Testator lacked the ability to understand the value or nature of the assets involved, failed to recognize who should receive those assets, and did not understand the ramifications of creating the Will. Being near death will not be sufficient to prove lack of capacity. Proving undue influence requires you to prove that the Testator was being controlled by another person or influenced by someone to the point that the decisions made in the Will were not his/her own.
Contact an Oklahoma City Probate Attorney
For additional information, please join us for an upcoming FREE seminar. If you have additional questions or concerns about contesting a deathbed Will, contact an experienced Oklahoma City probate attorney at Parman & Easterday by calling 405-843-6100 to schedule your appointment today.
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