It’s not uncommon for a person to want to change a decedent’s Last Will and Testament. The most common reason is, “Well, that’s not really what they wanted,” or “That’s not what they meant.” Those reasons are not enough to change a will after a person has died, which is why it is essential to get the Will right when it’s being created.
Short answer? No, you can’t change a person’s will after they die.
Long answer? It depends. (Hey, we’re attorneys, this is the default answer.)
What if I don’t like what it says?
You can’t change a will just because you don’t like what it says, even if you are the executor, you can’t interpret the Will however you want. You must follow the Will to the letter because that Will is the written reflection of the testator’s last wishes.
That doesn’t mean that there aren’t ways to challenge a will.
How can I change someone’s will?
If you think there is something wrong with a person’s will, you can challenge the will on a few different grounds.
The Will wasn’t signed correctly
State laws have precise requirements on how a Will is signed.
A will that is not signed correctly may be found to be invalid, if that happens, then any prior properly executed Will will be used. If there is no previous properly executed Will, then the estate will have to be administered according to the intestacy statutes, which may work out well for the person challenging the will.
The person signing didn’t have “capacity.”
The legal concept of “capacity” means that the person is over the age of 18 and that they are of ‘sound mind,’ which means that they know what they own, they know approximately how much it is worth, and they know to whom they want to leave it. For testators who are in the early stages of dementia or Alzheimer’s, they may not understand what they own, what is it worth, or to whom they are leaving it. If a testator has a diagnosis of dementia or Alzheimer’s, the testator may have to take additional steps to confirm and ratify the decisions made in their Will to avoid the claim of “lack of capacity.”
The person signing was “unduly influenced.”
As people age, they can become weaker both physically and mentally, which can make a person susceptible to the influence of others. Undue influence occurs when someone replaces the testator’s desires with their own. If the testator feels like he or she doesn’t want to make the will with certain provisions but is being required to make the will with the provisions in it, then that person is unduly influenced.
The person signing was tricked into signing it
If the testator does not realize that they are signing a will, then the will is fraudulent and not valid. If a person is presented with a Will, but they are told that it is a power of attorney or another document, and they sign it, that will is not valid because the person signing it did not realize that the document was a will.
Should I Contest a Will?
Whether you contest a will or let it go is a judgment call question, and the answer is highly personal. Challenging a Will is an expensive and challenging process. Unless you can point to a medical diagnosis near the time of signing to show incompetence or show that a will was signed incorrectly because witness testimony doesn’t line up, it is an uphill battle to challenge a will.