Q: I am trying to see what you need to do to send an estate into Probate.
My grandfather was not of sound mind in his later years and his wife has had a cremation done without allowing his sons or family to say goodbye. There may have been changes to his will in the last few years because of his altered mental state.
A:
Legally speaking, a person does not need the same mental capacity to make a will ("testamentary capacity") as they would to make decisions of everyday living and finances ("contract capacity"). Testamentary capacity is a lower standard. That said, if you believe your grandfather lacked capacity and signed a new will or codicil which distributed the estate in a way he would not have, if he had been of sound mind, then a will contest could be investigated. That would be a proceeding in the probate court to ask the court to determine the grandfather's capacity, and whether to recognize the last will, or whether to disregard the last will and recognize a prior will as the will. You will need good proof to set aside a validly executed will, it may not be easy. Also, if an estate has already been opened with formal proceedings and the last will has already been probated, you may be barred from re-opening the issue.
As always, this is an answer to a hypothetical. Be sure to talk to a qualified attorney about your specific situation before taking any action.
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