One of the biggest doubts when opening a will may be what would happen if we do not agree with what it says. In this case we could make a will challenge, but in order for us to file the challenge, certain reasons must be given. in the law outside of which it would not be possible to contradict the last will of the deceased.
The mere fact of not being happy with the provisions that the will contains could not diminish the freedom to make a will; we need solid bases to support the judicial challenge claim.
The will can be challenged when, being a forced heir (children or parents), the testamentary provisions do not respect the legitimacy quotas to which the heir is entitled. That is, the will is divided into three thirds, legitimate, improvement and free disposal. In common law, the child has the right to one third of the legitimate share. If the institution of forced heir is being harmed in the will because the right to the legitimate heir is not respected, it is cause for a testamentary challenge, with the benefited heir reducing his share of inheritance to give it to the heir.
Another cause of will challenge is preterition, which involves omitting one of the children or forced heirs from the will. Preterition may or may not be voluntary, that is, the testator, when executing a will, has knowingly excluded one of the children or the testator, not knowing of the existence of another child, has not taken him or her into account.
We could also challenge the will due to a formal defect at the time of drafting the will. Defects such as having drafted the will without having sufficient capacity to do so or being coerced by third parties or, in the case of a holographic will (in the testator's handwriting), not complying with its formal requirements.
If you are faced with a situation like this and have questions about the process, you can visit us for free without any type of commitment. At ACC LEGAL ABOGADOS we can help you.
