Reasons To Challenge a Will

It is tough to contest a will. Courts view a will as the voice of the person who wrote it. This person is known as the "testator" when alive and the "decedent" once they die. Because the testator cannot express or clarify their wishes after death, courts adhere closely to the text of the will.

Before they are administered, wills are often scrutinized in court to make sure they are genuine expressions of the testators' intent. These courts are known as probate courts. Nearly all wills pass through the probate process without issue. A contested will is rare. However, there are several legal reasons to invalidate a will.

Ways to Challenge a Will

A petitioner can base a will contest on allegations that the testator:

1. Lacked capacity
2. Was manipulated to write the will a certain way
3. Did not follow all necessary procedures or state laws in the execution of the will

A successful challenge can void a will in part or entirely. If voided in any respect, courts will act as though the will never existed. The distribution of the estate then proceeds according to state intestacy laws. Sometimes a court will use provisions from a previous will to fill in gaps.

Who Can Contest a Will?

Anyone with a stake in the estate has legal standing to challenge a will. Any interested party, from disgruntled family members to unsatisfied creditors, may contest a will. This article outlines common reasons one might challenge the validity of a will.

Lack of Testamentary Capacity

"Testamentary capacity" describes the mental state to make a will. Adults are presumed to have this ability. Challenging this presumption usually involves arguing that the adult was not of "sound mind" at the will's execution. A party can prove undue influence with evidence of the following:

• Dementia
• Insanity
• Intoxication
• Other forms of incapacity

Simply put, testators must be able to fully and lucidly understand the consequences of the legal document. In general, the testator should understand:

• The extent and value of their estate
• The identity of the heirs and beneficiaries
• People for whom they are otherwise obligated to provide
• What they are giving away through the will

The law presumes children lack the testamentary capacity to make a will. However, exceptions exist for married minors and teenagers who have served in the military.

Fraud, Forgery, and Undue Influence

Fraud, forgery, and undue influence are all legal grounds for challenging a will. All three refer to forms of dishonesty.

Fraud occurs when someone intentionally misrepresents essential information to the testator. They do this to gain something.

By contrast, forgery occurs when someone other than the testator creates a fake document or signature.

Undue influence is the most open-ended and flexible of the three dishonest practices. As such, it is the most common route for will challenges. Undue influence refers to manipulating the testator's free will about estate distributions.

Undue influence often involves someone pressuring a vulnerable testator to include them (or someone close to them) in the will. For example, an elderly person who relies heavily on others for support may be vulnerable to undue influence. Individuals with mental illness may be at risk for this pressure or manipulation. Undue influence arguments often go hand in hand with claims that the testator did not have the mental capacity to make the will.

New Wills Replacing Older Wills

A new will is generally understood to replace a prior will. However, careless drafting often leads to confusion. To avoid this, new wills should clarify in their text that they replace any previous versions. Failure to do so can create grounds for a dispute over which document should be enforced.

In particular, testators should date and sign their wills. Pages are often lost (or mysteriously disappear). Therefore, it's critical to number your pages. Providing at least a date and initial on each page is common.

In this day and age, cybersecurity is crucial, including when preparing your will. On the one hand, a well-scanned digital copy of the will can be enormously helpful in sorting out problems down the road. On the other, digital copies can be easily manipulated. Keep any computer copies of your will and other estate planning documents safe and protected from prying hands and eyes.

Courts are inclined to enforce the most recently signed and dated will available. They will presume that newer wills replace any earlier ones. To avoid confusion, you should destroy any old wills you intend to revoke (originals and copies). Ultimately, requirements for voiding or updating a will vary from state to state. Be sure to check your state's laws.

Interested or Inadequate Witnesses

Wills must be signed and dated by the testator in the presence of at least two witnesses who do not stand to inherit under them. Failure to comply with these requirements may be grounds for a challenge. The presence of witnesses at the will-signing ceremony helps ensure that:

• The testator was of sound mind
• No one pressured the testator
• The signature is authentic

Therefore, people named as heirs and beneficiaries in the will are generally not allowed to act as witnesses. These individuals have an inherent interest in the will. That self-interest compromises their neutrality and trustworthiness. Often, a listed heir or beneficiary who acts as a witness cannot claim their inheritance.

Across the U.S., about half of the states allow handwritten, unwitnessed wills. These are called "holographic" wills and are the easiest to challenge. From the testator's point of view, avoiding a holographic will is wise. The lack of witnesses and the highly informal drafting process mean holographic wills can quickly raise suspicions of fraud or forgery.

Where allowed, holographic wills must be entirely handwritten by the testator. In addition to a signature, some states also require a date. To enforce the validity of these wills, courts must be convinced that:

• The handwriting belongs to the testator
• The testator was of sound mind when writing
• The will is a true reflection of the testator's intentions

Failure To Include All Required Provisions

Each state has its own laws laying out the requirements to create a valid will. Many overlap, but failure to comply with the rules and their variations may also create grounds for a challenge. At its most basic, a will should:

• Identify the testator
• Express their clear intent to make a will
• Clearly identify what is being left and to whom
• Appoint a personal representative (in some places they are called "executors") to carry out the terms of the will

Should You Challenge a Will? An Attorney Can Help

Wills are filled with both symbolic and practical importance. A last will and testament is one of the most important documents you may create in your life. This is true whether you leave your worldly possessions to loved ones or your favorite charity.

Unfortunately, wills are not always drafted in a way that satisfies legal requirements. Worse, they are sometimes the product of outright manipulation and deception.

Working with a lawyer to ensure your legal documents comply with state law is prudent. If you are concerned that a will for a deceased person was improperly executed or has been improperly followed, you should seek professional legal advice. Depending on the situation, a local probate attorney or an estate planning attorney can help.

A legal professional can determine whether probate litigation is necessary. If so, the attorney can advise you of the statute of limitations, the time limit for bringing the claim, and whether you have grounds for a will challenge. Get help today.

1. Lack of Testamentary Capacity

“Testamentary capacity" is wordy legal jargon describing the mental state to make a will. Adults are presumed to have this ability. Challenging this presumption usually involves arguing that the adult was not of "sound mind" at the time the will was signed. This may be shown with evidence of dementia, insanity, intoxication, and other forms of incapacity.

Simply put, testators must have the ability to fully and lucidly understand the consequences of their will. In general, the testator should understand:

• The extent and value of their estate
• Who their heirs (individuals who will inherit based on the descent from the testator) and beneficiaries (individuals otherwise selected by the testator to inherit under a will) are
• Who they are otherwise obligated to provide for
• What they are actually giving through the will

Unlike adults, minors are presumed to lack the testamentary capacity to make a will. However, exceptions exist for minors who have served in the military and minors who are married.

2. Fraud, Forgery, and Undue Influence

Fraud, forgery, and undue influence are all grounds for challenging a will. All three are related to the extent that each refers to forms of dishonesty.

For example, fraud occurs when someone intentionally misrepresents important information to the testator in order to secure some sort of gain through the will. By contrast, forgery occurs when someone other than the testator creates a fake document or signature.

Of the three dishonest practices listed here, “undue influence" is the most open-ended and flexible, making it a popular route for will challenges. The phrase simply refers to the manipulation of the testator's free will to make independent decisions about how to distribute their estate.

Undue influence often involves someone pressuring a vulnerable testator to include them (or someone close to them) in the will. For example, an elderly person who relies heavily on others for support in their day-to-day lives or a spouse suffering from mental illness may be vulnerable to this kind of pressure or manipulation. Arguing that a will is invalid due to undue influence often goes hand-in-hand with arguments that the testator did not have the mental capacity to make the will.

3. New Wills Replacing Older Wills

New wills are generally understood to replace old wills. However, careless drafting often leads to confusion. To avoid this, new wills should make it crystal clear in their text that they are meant to take the place of any previous wills. Failure to do so can create ground for a dispute over which document should be enforced.

In particular, testators should be sure to date and sign their wills clearly. Pages are often lost (or mysteriously disappear). Therefore, number your pages! It is not uncommon to provide at least a date and initial on each page.

In this day and age, cybersecurity is all-important, including when preparing your will. On one hand, a well-scanned digital copy of the will can be enormously helpful in sorting out problems down the road. On the other, digital copies can also be easily manipulated. Make sure to keep any computer copies of your will (and other estate planning documents) in a safe place and well away from prying hands and eyes.

Note, courts are inclined to enforce the most recently signed and dated will available. They will presume that newer wills are meant to replace any earlier ones. To avoid confusion, you may want to destroy any old wills you intend to revoke (originals and copies). Ultimately, requirements for voiding or updating a will vary from state to state. So be sure to check your state's laws.

4. Interested or Inadequate Witnesses

Wills must be signed and dated by the testator in the presence of at least two witnesses who do not stand to inherit under them. Failure to comply with these requirements may be grounds for a challenge. The presence of witnesses at the will-signing ceremony helps ensure that the testator was of sound mind, was not pressured, and that their signature is authentic.

Therefore, individuals named as heirs and beneficiaries in the will are generally not allowed to act as witnesses. These individuals have an inherent interest in the will, which compromises their neutrality and trustworthiness. Often, a listed heir or beneficiary who acts as a witness is barred from claiming their inheritance.

Notably, about half of the states allow handwritten, unwitnessed wills. These are called "holographic" wills and are the easiest to challenge. From the testator's point of view, they should be avoided. This is because the lack of witnesses and the highly informal drafting process means holographic wills can quickly raise suspicions of fraud or forgery.

Where allowed, holographic wills must be entirely handwritten by the testator. In addition to a signature, some states also require a date. To enforce the validity of these wills, courts must be convinced that the handwriting belongs to the testator, that the testator was of sound mind when writing, and that the will is a true reflection of the testator's intentions.

5. Failure to Include All Required Provisions

Each state has its own laws describing minimum requirements to create a valid will. Many overlap, but failure to comply with the requirements and their variations may also create ground for a challenge. At its most basic, a will should:

• Identify the testator
• Express their clear intent to make a will
• Clearly identify what is being left and to whom
• Appoint a personal representative (in some places they are called "executors") to carry out the terms of the will

Should You Challenge a Will? An Estate Planning Attorney Can Help You Decide

A last will and testament is one of the most important documents you may create in your life. Whether you leave your worldly possessions to loved ones or your favorite charity, wills are filled with both symbolic and practical importance.

Unfortunately, wills are not always drafted in a way that satisfies legal requirements. Even more unfortunately, sometimes they are the product of outright manipulation and deception.

If you believe that a will impacting your life was improperly executed or has been improperly followed, you may want to seek professional legal advice from a local estate planning attorney.