If you have seen a Bollywood movie in the recent past, you may recall a court scene in which the family of the deceased picks apart his or her Will, resulting in a dramatic (and tearful) battle, that ironically has the opposite effect of what was intended by the deceased in the first place.

For many, misconceptions like these feed unsubstantiated fears that their attempts to do right by their families in creating a Will will have the opposite effect and cause nothing but strife. The reality, however, is far less sensational. With a valid Will in place, it is quite uncommon for these kinds of theatrics to ensue.

Challenging A Will: The Facts

A Will must satisfy the court that it is in fact the last Will and Testament of a free and capable Testator (person making the will/you). That is, any person above the age of 18 years, who is of sound mind (ie capable of understanding his or her own actions) and free from any undue influences, or coercion, can make a legally valid Will.

It is important to note here that a person should be of sound mind at the time of signing their Will. So, a mentally incapacitated or incapable person cannot create a legally valid Will. However, a person, let’s say with Alzheimer’s, may create a valid Will if s/he is lucid at the time it was written and signed. On the other hand, a clinically sane person cannot have created a valid Will if s/he was inebriated at the time of its creation.

Neither can a person be forced or pressured into writing a Will. For example, if a child mentally or physically coerces a parent into drawing up a Will, it will be considered invalid as it was signed under duress.

Credible objections can also be raised and lead to disputes when the Testator bequeaths assets that do not belong to him or her. That is to say, the ownership of the property is in question, or is under litigation. For example, if a Testator bequeaths a house that is in the name of a spouse or another family member, to someone in his or her own Will, such a disposal has no legal validity.

No one can ever question whom you have/have not given your assets to, or contend that they deserve a share under your Will. Most people who have Wills don't even need to go to court, since probate (the act or process of officially proving a Will to be valid) is not required in most cases. Regardless, probate is a rather standard procedure and in most jurisdictions, even the court fees are capped.

How To Safeguard A Will From A Dispute

Practically speaking, disputes against Wills themselves are extremely uncommon. The most important thing to remember is that as long as a Will is clearly drafted and validly executed (signed by yourself and two Witnesses who can attest to your state of mind), the chances of a dispute can be greatly reduced and in fact nullified.

Another good tip here is to make sure that the asset distribution is as fair and equitable as possible. Otherwise, a disgruntled heir may contest the Will. Even though s/he is unlikely to win the case, it will still hold up the distribution of assets. If for any reason, it is your wish to give more of the estate to one child over the other, a better way to do it is to gift anything extra during your lifetime rather than create an unbalanced Will.

The Bottom Line

Ultimately, whether or not your Will is contested, there is no substitute for this document and as far as your family is concerned, having a Will in place is always better than not. There’s just no doubt about it.