What Is Contesting a Will?
The process of disputing the validity of someone’s last will and testament after the testator (the creator of the will) has died is the definition of contesting a will.
If you are thinking of contesting a will, the first thing to consider is vagueness is not your friend. You must have evidence to back up your claims, not just a hunch, suspicion, or sense of unfairness. It is generally very difficult to contest a will. Wills are seen by courts as the voice of the person who wrote the will and because the testator cannot express or clarify their wishes once they die, courts adhere closely to the text of the will.
Nonetheless, when a will is filed in probate court, interested parties must object within the time period provided by the jurisdiction’s laws. The court then determines if the will is valid and determines heirs, beneficiaries, worth, and assets. However, every state has its laws for the grounds and process for contesting a will. Learn more about the laws in California by speaking with an experienced Orange County will attorney at Evolution Tax and Legal.
Reasons To Contest a Will
When contesting a will, there are two possibly successful arguments that can challenge the validity of a will:
- a lack of capacity by the testator, and
- a manipulation to write the will a certain way.
It is important to note that a will can be found to be void, either in part or in its entirety.
Testamentary Capacity
Adults are presumed to have “testamentary capacity,” which describes the mental state necessary to make a will. Challenging this presumption typically involves arguing that the adult was not of “sound mind” at the time the will was signed. Evidence such as dementia, insanity, intoxication, and other forms of incapacity may prove a will invalid.
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
On the contrary, 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.
Fraud, Forgery & Undue Influence
Additionally, fraud, forgery, and undue influence are all grounds for challenging a will as all three are related to forms of dishonesty.
Examples of dishonesty occur when someone intentionally misrepresents important information to the testator in order to secure some sort of gain through the will (fraud) or when someone other than the testator creates a fake document or signature (forgery).
Undue influence is the most open-ended and flexible of the three. This is because the phrase simply refers to the manipulation of the testator’s free will to make independent decisions about how to distribute their estate. It generally involves someone pressuring a vulnerable testator to include them (or someone close to them) in the will. Arguing that a will is invalid due to undue influence can many times also encompass challenging the testator’s mental capacity.
Prior Wills Weren’t Correctly Revoked
When a new will is signed, it is generally understood to replace the old will. However, sometimes careless drafting will lead to confusion. For this reason, it is very important that language be clear to state that the new will takes the place of any previous wills. Failure to do so can create ground for a dispute over which document should be enforced.
Additionally, for this reason, testators should be sure to date and sign their wills clearly. Pages have been known to have gone lost (or mysteriously disappeared). Therefore, another proactive tip is to number your pages! You could even go a bit further and provide at least a date and initial on each page.
Copies, copies, copies! Make sure to keep printed copies and digital copies of your will (and other estate planning documents) in a safe place and well away from prying hands and eyes. In today’s age, cybersecurity is important. On one hand, a digital copy of a will can be extremely helpful in sorting out problems down the road. However, on the other hand, digital copies can also be easily manipulated. 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.
Sufficient & Appropriate Witnesses
Essential parts to a will are the signature and date 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 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 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.
Nonetheless, about half of the states allow handwritten, unwitnessed wills. These are called “holographic” wills and are the easiest to challenge. As a testator, these types of will should be avoided because the lack of witnesses and the informality of the drafting process equates to raised suspicion of fraud or forgery.
Moreover, 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.
Who Can Contest a Will?
Typically, the only people who can legally challenge a will are (1) beneficiaries alert named in the will; (2) beneficiaries named in a previous will; (3) anyone not named i the will but, because of the intestacy laws, would be eligible to inherit property if a will didn’t exist (this usually means a spouse, child, or next-of-kin).