CENTER FOR PROBATE & ESTATE ADMINISTRATION
Even though a person leaves a will, it does not guarantee that the decedent’s property will be distributed according to its terms. The court provides an opportunity to allow certain persons, known as interested parties, to object to the will by filing a will contest. The state statutes govern how and when a will contest can be filed.
If you believe the will of a loved one is invalid, or if someone is challenging a will for an estate that you are handling as the executor, or an estate in which you are a beneficiary, you should contact an attorney with experience in will contest cases. An experienced attorney can advise you about how this should best be handled under your state’s laws.
Grounds for contesting a will may include (depending on your state statute):
- Later Dated Will. Normally, a later dated will replaces an earlier will, provided that such later dated will conforms to the legal requirements under the state statute.
- Incapacity. One of the legal requirements in the making of a will is that the testator has to be of sound mind and memory at the time the will is executed. This means that the testator has to understand the nature and extent of the property that he or she owns, who the family is who would normally benefit from the will and how the property would be divided in the will. One of the grounds for a will contest is that the testator lacked capacity to make the will on the date the will was executed. The lack of capacity could emanate from the testator being under the influence of alcohol or drugs or that the testator had severe dementia and did not have any capacity on that date.
- Undue Influence. If, when the will is signed by the testator, someone else has caused the testator to sign a will containing provisions that the testator would not have wanted, but for the other person’s insistence or coercion, this may be grounds for a will contest. Some examples of undue influence are coercion, duress or fraud.
- Improper Execution. Each state has statutes that dictate how a will must be executed. The will must be in writing, signed by the testator and the will must be witnessed and notarized. If these formalities are not observed, this may be grounds for a will contest.
- Forgery. If someone other than the testator signed the document, a will can be found to be invalid due to forgery.
Each state statute sets forth a limited time frame for a person to challenge the validity of the will using one of the grounds listed above. In the event that a court holds that the will is successfully contested, the court may:
- Admit an earlier will (if there is one) in place of the disallowed will;
- If there is no earlier will, use the state intestacy statute to determine how the property would have been distributed, which are the default rules in the event that a person dies without a will.
The challenge to a will is a serious matter and has significant impact. If you think that there is a possibility of a will contest, contact an attorney who is experienced in probate and estate administration to assist you in protecting your rights.