Difference between diminished capacity and coercion

On Behalf of | Dec 23, 2016 | Estate planning, Firm News

Coming to terms with your parent’s death is seldom an easy process. Even though you may be well into your own mid-life years and far into the journey of raising your own children, mourning your mother or father’s passing is an emotional experience. If you are one of many adult children of recently deceased parents in South Dakota who are experiencing serious problems related to your mother’s or father’s will, such stress can complicate your grieving process.

It’s understandable that you may feel overwhelmed and wonder where to turn for help to rectify your situation. There is a support network available to assist those who are facing legal challenges regarding a parent’s last will and testament. Especially if you plan to contest a will, you may want to act alongside skilled and experienced guidance, rather than attempting to navigate alone what is often a complicated process.

Common reasons for contesting a will

The last thing you need as you lay your loved one to rest is a contentious battle among family members over the inheritance your loved one promised you or any other probate-related issue. Your mother’s or father’s decision to name you as a beneficiary was an intensely private and personal matter. If you believe that the final will as it stands is invalid, you may pursue the matter by contesting it in court.

The following is a list of reasons others have contested wills in the past:

  • Diminished capacity: If you believe your mother or father was incapable of understanding the requirements necessary to sign a will, you may have grounds for questioning its validity.
  • Coercion: Even if your parent possessed appropriate capacity when he or she signed a will, if you suspect undue pressure existed from an outside party at the time, you may request that the court void the will.
  • Fraud: Any type of forgery or fraudulent behavior that affected your parent’s intent or actual document may be cause for you to contest the will as invalid.
  • Clerical error: You may file a claim for rectification if you have reason to believe someone negligently drafted your parent’s will or that someone made a clerical error.

The above list is not extensive, but defines the basic reasons for taking formal legal action to contest a parent’s will.

Clarifying diminished capacity versus coercion:

Testamentary capacity (meaning, the mental capacity of the person signing a will) only requires that your parent understood the nature of his or her assets, comprehended what he or she was signing and had knowledge of the logical heirs. This means, if your parent had any type of health condition (such as dementia) which later caused lack of coherence or memory, it does not necessarily mean the will is invalid, providing your parent was lucid and aware at the time he or she signed the will.

Even if you are able to prove that your parent did not meet the requirements for testamentary capacity, it is not the same as saying someone unduly influenced your parent. The court may consider this to be coercion, suggesting someone pressured your mother or father into changing the contents of the will or signing something he or she did not want to sign.

Where to turn for help

You may be hesitant to act, thinking of a long road ahead and potential discord that may erupt among your family members if you do contest your parent’s will. However, if you fully believe the will is not valid, you would be acting within your rights as a son or daughter and logical direct heir. An experienced probate and estate administration attorney can provide many services to help you obtain a fair and satisfactory solution to your problem, including the following:

  • Clarify South Dakota law regarding such matters
  • Review your particular situation to determine if there is basis for a challenge
  • Guide you through the process of filing a contested will claim in court
  • Speak and act on your behalf in all official matters regarding your situation

With appropriate counsel and thorough guidance, you can take comfort in knowing that justice will be served as you preserve the memory of your loved one and protect your own rights.


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