Grounds and Procedures for Contesting a Will


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A person’s Last Will and Testament declares how he or she wants property distributed upon death. This legal document has great power, and courts follow the directions when possible. However, a will contest can disrupt probate proceedings and derail them entirely.

A will contest seeks to have the will declared void so that the person will die without a will or will revert to a previous will.

Preventing a Will Contest

Testators, people creating the will, can take steps to prevent a will contest. This includes having a lawyer draft the will to ensure that all legal formalities are followed. An attorney can also have witnesses complete self-proving affidavits to prevent the need to have witnesses testify in court about the testator’s appearance of being of sound mind. Although these steps can help reduce the likelihood that a will contest will be successful, even wills that are perfectly drafted can still be contested. However, the person bringing forth the will contest has the burden of proof of establishing that the will is not a valid will.

Standing

State law determines which parties can contest a will. However, generally the people named in the will, the beneficiaries, and the people who would stand to inherent absent a will, the heirs, can contest a will.

Grounds to Contest a Will

There are several grounds that a person can use to contest a will. Some common reasons to contest a will include:

Formalities Were Not Followed

In order for a will to be declared valid, the testator must have followed the rules that are specified by state law. This usually includes the testator making a declaration that the will was what was being signed, two witnesses being present and witnessing the signing of the will and valid signatures by the testator and the witnesses being included on the will. If the formalities were not followed, the will may not be accepted by the court as a valid will.

Lack of Capacity

Additionally, the testator must be of sound mind when he or she creates the will. The court is not concerned with whether the testator later developed a condition that incapacitated him or her. The question is whether the testator was of sound mind when he or she signed the will. If the testator did not have the capacity to create a will, the will is not valid.

Undue Influence

Another ground to contest a will is if the testator was unduly influenced. Undue influence occurs when a person exerts an unreasonable amount of influence over the testator by threatening him or her, separating him or her from the rest of the family or depriving him or her of needed resources in an attempt to get the testator to sign a will that benefits the person who is unduly influencing the testator.

Fraud

Fraud arises when someone gets the testator to sign a document that he or she does not know is a will and the testator had no reasonable opportunity to confirm this information.

No Contest Provisions

Some wills contain a “no contest” provision that states that if a person brings forth an action to contest the will, he or she will lose whatever inheritance that he or she was entitled to. Some states do not honor such provisions if the person bringing the contest has valid grounds to do so.

Will Contest Procedures

After a person brings forth a claim against the will, the court will rule whether the procedural grounds have been met. The will contest becomes part of a litigated aspect of the probate process. The court must settle this issue before other aspects of the probate process can be completed since the decision on whether the will submitted to the probate court is valid will affect these other aspects.

Will contests may take a significant amount of time to settle, including months or years. The court may receive evidence and hear testimony during court hearings in order to determine whether the will was validly executed and meets all legal requirements.

Legal Assistance

Individuals may choose to retain the services of a lawyer if they are concerned about a will contest. Estate planning attorneys can assist clients in drafting wills and including provisions that will make a will contest more difficult to prevail on. Probate attorneys can be retained by family members or the estate to fight or defend a will contest.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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