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How is a will challenged?

Find out how to challenge a will.

Family Law
How is a will challenged?

A will is the act by which the last wishes of a person about his estate are arranged. You have to know how to challenge a will since it is an act that requires certain legal characteristics to be valid.

The contestation of a will is the civil procedure through which a person expresses his disagreement with the last wishes of the deceased, either by the heirs that appear or by the elaborate distribution. In the first case, we speak of testamentary provisions that attack legitimate rights, while in the second, we refer to the will of the testator to deliberately include or not some people or others in the will.

Who can challenge a will?

The contestation of a will is conditioned by the relationship that exists between the deceased and the person interested in changing his last wishes. Therefore, only those persons established by law have the right to file a claim.

At this point, it is worth highlighting the figure of the forced heir, that is, the person who has the right to receive the legitimate part of the inheritance. The legitimate part is that part of the patrimony to which not even the testator can put the owner, so that we place as forced heirs the children and descendants, the parents and ascendants in case the first do not exist or, failing that, , to the spouse.

When can you contest a will?

According to article 675 of the Civil Code, it is forbidden for the testator to avoid the testamentary challenge once he has died and the distribution of his assets is made. However, the law does allow you to establish that whoever can challenge the will does not receive more assets than that which appears in the strict legitimate, that is, the third part that must go obligatorily to the forced heirs.

Thus, we can differentiate three situations in which a person can exercise their right to challenge a will on the grounds that the distribution of it does not meet inheritance rights:

The legitimate. As we anticipated, it is the part that the Law reserves for forced heirs. In this way, the affected party may claim the contestation of a will when, being the son of the spouse, it does not appear in the document. On his part, the testator can distribute the freely available third to whomever he wants, relative or non-family member, while the improvement third can be assigned as he prefers among the heirs.

Disinheritance. This is a very important part of contesting a will, because the affected person will lose their rights to claim the legitimate inheritance if the testator has decided to disinherit them. These must be cases that the law expressly provides.

In the case of children, they may be disinherited when they have denied food or care to their parents, as well as when there has been physical or psychological abuse. For its part, the disinheritance of parents or ascendants will take place when they, in the same way, have denied food to their children or if there has been mistreatment between both parties. Finally, when the heir is the spouse, because there is no descendant or ascendant figure, the testator may resort to disinheritance when he has not complied with conjugal duties.

Incapacity of the deceased. Article 663 of the Civil Code states that the testator must have the ability to distribute their assets, in such a way that it considers wills made by minors under 14 years of age and by those who are unable to express their will despite having with the means to do so.

How can a will be challenged?

To challenge a will, as affected you must sue in court with the advice of a lawyer specializing in Civil Law. It is a process that needs to file the lawsuit through the Court of First Instance of the place where he has died.

Family Law

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