September 18, 2020

You have done everything right. You’ve met with a will and trust attorney, written your will, and gone forward with your estate planning. Everything should be carried out without issue and your heirs won’t have undue stress. However, there may be a little bit of doubt. Could your will be contested?

Grounds for Contesting a Will

One can’t contest a will simply because they don’t like it. A beneficiary (or one who thought they’d be a beneficiary) may be unhappy, but that doesn’t mean your will can be challenged.

Invalidating a will isn’t as simple as throwing out a provision. If a will is invalidated, the entire will is thrown out, and the estate will go through probate as if a will had never been written. In most states there are four legal reasons why a will can be contested, and they can be very difficult and expensive to prove.

Will Wasn’t Signed in Accordance with State Laws

States have very specific laws about how a will must be signed. In many states, the testator (the person who is leaving the will) must sign in the presence and hearing of two adult witnesses. They must be in the same room and sign while the others are watching. Having a will and trust attorney guide you through the process will help ensure you are doing everything legally.

Testator Lacked Testamentary Capacity to Sign a Will

This means that the person leaving the will must understand their assets and who should logically inherit those assets. The testator must understand the legal effect of signing a will. The witnesses are signing that they believe that the testator understands.

Testator Was Unduly Influenced

As people get older, they can be more susceptible to the influence of others. If someone is contesting a will on these grounds, they believe that there was an influencer who put extreme pressure on the testator. Nagging, verbal abuse, and even threats aren’t typically enough to challenge the will on these grounds. If someone is challenging the will on these grounds, it is typically because the influencer paid for the will or met with the attorney regarding the provisions.

Will Procured by Fraud

In this case, the testator may be tricked into signing a will. They may be told it’s something else (like a deed or a power of attorney). In this case, the witnesses will need to testify to what they thought the testator was signing.

Who Has the Legal Right to Contest a Will?

A will can only be contested by certain people. Not everyone can attempt to contest a will. Those who can attempt to contest a will would be financially or personally affected by the will if it is accepted by the court as valid. Simply having the standing to contest the will doesn’t mean the will should be thrown out, just that these people have the legal right to contest the will based on one of the conditions above.

Those who can typically contest the will are:

Disinherited Heirs-at-Law

An heir-at-law is someone who would receive a share if the deceased had died without a will. Usually this is the spouse, children, or grandchildren. Parents and siblings would only inherit if the deceased was unmarried with no living children. Minors cannot contest a will, but someone may be able to challenge a will on their behalf.

Beneficiaries and Fiduciaries in a Prior Will

If someone was named in an older will and was cut out of a more recent document, they also have standing to contest the will.

The Importance of Working with a Will and Trust Attorney

Will contests are a complex area. Working with a will and trust attorney will help you feel confident that your will is legal, valid, and will hold up in court. Although there are ways to do a legal will on your own, you will lose the expertise that a will and trust attorney can provide.

If you’ve taken the time to write a will, you want to make sure that it will hold up. Speaking with a will and trust attorney is the best way to make sure your will is valid and will provide for your beneficiaries per your final wishes. If you have questions about your will contact my office today.