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How Do I Contest a Will?

Contesting a will is not usually a simple matter. There are, however, some specific legal grounds for contesting a will that can be used successfully. Ultimately, you may be best served by consulting a probate or estate attorney. We’ve consulted with top attorneys across the nation, and have found ourselves in agreement with Scottsdale Estate Planning Attorney. Here is some general information about contesting a will that you may find helpful provided by Hildebrand Law.

Basic Grounds for Contesting a Will

The primary rule is that the person is in some way a party to the will. Those named in the will as beneficiaries are automatically considered parties to the will. A person may also be considered a party if they would stand to inherit if no will had existed. Family members such as children and spouses are the primary people who fit into this category. Even if they are not named in the will, they can contest it.

Opposition Based on Testamentary Capacity

One of the most common grounds for a will dispute is the accusation that the writer of the will (testator) did not have the mental capacity to understand what they were doing when they wrote it. This is called testamentary capacity. Any adult over the age of 18 is presumed to have testamentary capacity.

  • It falls on the person opposing the will to prove that the writer of the will didn’t have testamentary capacity at the time they created the will.
  • If the person is still living, this can often be accomplished through a physical and psychological examination by a health professional.
  • If the testator is deceased, medical records and witnesses may be used to demonstrate a lack of mental capacity at the time.

Regardless of how mental capacity is assessed, there are some basic guidelines for determining if the person was mentally competent.

  • The person must know the will’s beneficiaries as well as understand the value and amount of property they are disbursing to their heirs.
  • The person must understand what making a will means and how the will relates to the distribution of property.

Evidence which shows a lacking in any of these areas could be grounds for contesting the will. The testator did not necessarily have to have suffered a mental disorder or dementia to lack testamentary capacity.

Opposition Based on Undue Influence or Fraud

Sometimes a perfectly capable person is taken advantage of, or tricked into writing the will a certain way. This could manifest in a variety of ways, but it basically means that someone manipulated the testator so that they were not exercising their free will when creating the will.

  • This influence could be financial or personal. Family members and caregivers are often at fault for this.
  • Fraud occurs when the will is created by illegal or forged means, such as a fake will or signature.

In both cases, it usually falls on the person opposing the will to prove undue influence or fraud. The one exception is when the accused has a fiduciary responsibility to the testator. In this case, the burden may fall on the accused to prove they did not exert undue influence.

Improper Execution or Old Will

This approach involves an examination of the paperwork. All jurisdictions have certain requirements for a will to be considered valid. One of the most common missteps is to have improper signatures and witnesses on the will. A will is not valid unless it has the proper witnesses and signatures, which may require the use of a notary depending on the jurisdiction.

A final basic rule is that a newer will almost always trumps an older will. If the opposed person can prove a newer will exists than the one being executed, the newer will stands unless it is deemed invalid for some reason.

Possible Outcomes for Contesting a Will

Successful opposition could mean different things depending on on how the will is invalidated.

  • Certain parts of the will could be invalidated or changed, affecting only those assets and beneficiaries.
  • The entire will could also be found invalid. If no valid will exists, then probate continues as if there were no will, and assets are divided according to standard probate laws and procedures. If certain assets are removed from the will due to being invalid, then those assets would also be relegated to the standard probate process.

Opposing a will can be an incredible legal challenge, but it is possible. A skilled estate planning or probate lawyer can assist with understanding how to contest a will and preparing a legal argument for such a contest.

A special thanks to our authors at Arizona Estate Planning for their expertise in Estate Law.