As lawyers specializing in international inheritance, we want to focus on a topic you may have wondered about: the possibility of nullifying a will. We’re going to look at when it can be done and what steps must be followed.
First of all, we should underscore that a will is the basic document that allows us to ensure that an estate will be distributed as the deceased desired. It is a way of guaranteeing the testator’s will after their death. The issue is that sometimes when this person has, for example, dementia and isn’t in full possession of their mental faculties, it is possible to have them declared incompetent by a judge, at which point they may not be competent to make a will. This is when we discuss wills made by incompetent testators. Sometimes, even after their death, the testator’s relatives go to the notary and notice a change to the will. In this case, if it is shown that the person made the will while mentally incapable of making decisions, the will can be contested, i.e. nullified. However, the fact that it has been made by someone legally declared incompetent does not automatically nullify it, because if formal requirements are met by the notary, the will may be valid (since the notary can use two physicians who determine that the incompetent individual is having a moment of lucidity in order to make the will).
How do you have a will declared null and void?
A will is considered null and void when it doesn’t meet the necessary validity requirements. A request for a will to be declared null and void must be made by filing a claim in the courts. There are several reasons why it may be declared null and void:
1. Lack of competence of the testator: For example, a will made by a 14- year-old minor or someone without sufficient mental capacity.
2. Lack of consent: For example, if the will has been made due to violence, deception or coercion.
3. Using a type of will not permitted by law: For example, a joint will.
4. When the will is not in the format required by law.
If the entire will is declared null and void and there is no older version to use, intestate succession begins, which is determined by the law. In this case, the estate is inherited in the following order: children and descendants, parents and ascendants, spouse, siblings and nephews/nieces, aunts/uncles by blood, 4th degree collateral relatives (first cousins and first cousins once-removed), and finally the state.
At ICN LEGAL, we would like for you to keep in mind that nullifying a will is a long and complicated process that can end with there being no valid will, in which case the order established by law must be applied. However, we will advise you throughout the process as lawyers who are former judges, answering any questions that may arise.