The fact that a person (the decedent) leaves a will does not guarantee that the decedent's property will be distributed according to the will's terms. A court generally must provide an opportunity to allow others to object to the will, and a challenge may be brought by anyone with an interest in the will who believes the document is invalid in some way. A will contest is an action challenging the validity of the will and is commonly governed by state statutes.

If you believe a will is invalid, or if someone is challenging a will you are administering or benefiting from, you should contact an attorney with experience in will contest cases. An experienced attorney can assist you with this type of difficult and emotionally-charged case, and can advise you on the best way to proceed under your state's laws.

Grounds for contesting a will include:

• Later Will. If a later will was made, and the making of the will conformed to the necessary legal requirements, then the later will replaces the earlier will.
• Incapacity. A valid will requires that the decedent was of sound mind at the time the will was made. The "sound mind" requirement typically requires that at the time the will was made, the decedent had the ability to generally understand the nature and extent of the property to be disposed, his or her relationship to those who would naturally claim a benefit from the will, and the practical effect of the will as executed. Proving that the decedent was mentally ill or under the influence of alcohol or drugs at the time the will was made are ways to establish incapacity.
• Undue Influence. If at the time the will was made, the decedent did not exercise his or her judgment in making the will, but rather made the will according to the wishes of another, the will may be found invalid on the grounds of undue influence. Coercion, duress and fraud are examples of undue influence.
• Improper Execution. A will must be properly executed in order to be valid. This requires that the creation and the execution of the will conform to the state's requirements, which can include the will having to be in writing and signed by the person making the will (the testator) and that the will be witnessed or notarized.
• Forgery. A will can be found invalid if any portion of the will, including any terms of the will or the signature of the testator or the witnesses, are determined to be forged.

There is a limited amount of time set by state statute to challenge the validity of the will on one of these grounds. If the validity of a will is successfully contested, the probate court may:

• Disallow only that part of the will that is successfully challenged
• Admit an earlier valid will (if one was made) in its place
• Determine that the decedent died intestate and distribute the assets according to the state's intestate succession laws, which are the legal default rules for estates without a will

Conclusion

The consequences of a will contest are significant for all of the parties involved. If there is the possibility of a will contest, contact an attorney experienced in probate and estate administration to ensure that your rights are protected throughout the process.

Copyright ©2009 FindLaw, a Thomson Business

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

Return to Main

Home || Firm Overview || Attorney Profile || Practice Areas || Guardianship || Probate and Estate Administration || Prenuptial Agreements || Special Needs Planning || Elder Law Center || Estate Planning Center || Wills and Trusts Center || Probate and Estate Center || Resources || Contact Us || Site Map

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

Copyright © 2010 by Law Office of Warren B. Brams, P.A. All rights reserved. You may reproduce materials available at this site for your own personal use and for non-commercial distribution. All copies must include this copyright statement.