The Difficulties of Challenging a Will

Due to the increased number of diagnosed cases of Alzheimer’s disease and dementia, there are more potential cases of heirs challenging wills based on the decedent’s incapacity. Challenging a will in Louisiana courts, can be expensive, time consuming and emotionally difficult. These types of cases can be difficult to win.

It is important to remember that under Louisiana law, there is a presumption that the decedent has capacity. The burden is on the person challenging the will to show that the decedent lacked legal capacity to execute at will at the time it was signed. If there is a tie, the person challenging the will lose.

Unless the decedent was an interdicted or an unemancipated minor at the time they executed the will, proving incapacity can be very difficult to prove. The strength of the decedent’s treating medical doctor can be critical and pivotal as to the outcome. Many times, doctors are unwilling or unable to give a strong opinion as to a lack of capacity.

Also, practical factors should be considered prior to filing a lawsuit such as the amount the person challenging the will is willing to spend on litigation as well as the amount that can potentially be won.

Should you have any questions about succession, you should consult with an experienced estate planning attorney.

Kent S. DeJean

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