Reasons to Challenge a Will
It is generally very difficult to contest a will. Wills are seen by courts as the voice of the person who wrote the will. This person is known as the "testator" when alive and as the "decedent" once they pass away. Because the testator cannot express or clarify their wishes once they die, courts adhere closely to the text of the will.
Before being administered, wills are often scrutinized in court to make sure they are true and valid expressions of the testators' intent. These courts are known as probate courts. Nearly all wills pass through the probate process without issue. Even so, there are a number of legal reasons a will might be invalidated.
Two Ways To Challenge a Will
Two possibly successful challenges are that the testator:
- Lacked capacity
- Was manipulated to write the will a certain way (more on that below)
A successful challenge can void a will in part or entirely. If voided entirely, courts will act as though the will never existed. The estate is then distributed according to state intestacy laws. Sometimes, provisions from a previous will can also be revived to fill gaps.
So, who can contest a will? Basically, anyone with a stake in the estate has legal standing to challenge a will — from disgruntled family members to unsatisfied creditors. This article outlines some common reasons one might challenge the validity of a will in more detail.
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.
Can I Solve This on My Own or Do I Need an Attorney?
- DIY is possible in some simple cases
- Cases with complex assets or families are rarely cut and dry
- Complex cases may need tailored advice from a lawyer
- Many attorneys offer free consultations