It is not unusual to hear a disgruntled potential heir make a threat to challenge someone’s will. Such threats are easy to make, but usually unsuccessful. Feeling that one has not been treated fairly is not enough by itself to prevail in a will contest. A competent decedent has the right to leave their estate to anyone he or she chooses. A surviving spouse (and in some jurisdictions minor children) may under state law have the right to elect to take a higher percentage of the estate (usually 1/3) if greater than the percentage actually left to them, but this is not contesting the will.
Contesting a will is usually a lengthy and expensive endeavor and the contestant, assuming a sufficient connection or “standing”, also must have a valid legal basis to do so. The following reasons are generally accepted as the legal basis for challenging a will, although state law will vary as to the particulars.
The document offered for probate is not a legally enforceable will. Each state has its own formalities, but usually the will must either be in the decedent’s handwriting or witnessed by two adults and notarized. The document must also have been intended to be the decedent’s last will and not for example, a draft.
The decedent lacked the testamentary capacity to make a will. A person is deemed competent to make a will as long as they understand the composition of his or her estate and know the natural objects of their bounty regardless of any illness or other infirmity.
The decedent was unduly influenced by a person in a fiduciary relationship with the decedent who stands to gain from the will. If such a relationship is found to exist, the burden of proof often switches from the contestant to the proponent of the will (the executor).
Some or all of the will resulted from fraudulent representations or mistaken beliefs of the decedent. Fraud would result if the decedent were intentionally provided with false information. Innocent misrepresentations to or mistaken beliefs by the decedent though, would generally not invalidate a properly executed will.
It is usually advisable to consult an attorney when you think someone may challenge your will. The attorney can explain your state law to you in general and in particular the effect in your state of an “in terrorem” clause. Such a clause in your will attempts to limit challenges by providing that any challenger will be disinherited. Some states do not recognize such clauses as against public policy.
If you expect a will challenge you may also want to take such precautions as videotaping the signing of your will and where appropriate, obtaining documentation from a physician that in your doctor’s opinion, you are competent to make a last will and testament.
Contesting a will is usually a lengthy and expensive endeavor and the contestant, assuming a sufficient connection or “standing”, also must have a valid legal basis to do so. The following reasons are generally accepted as the legal basis for challenging a will, although state law will vary as to the particulars.
The document offered for probate is not a legally enforceable will. Each state has its own formalities, but usually the will must either be in the decedent’s handwriting or witnessed by two adults and notarized. The document must also have been intended to be the decedent’s last will and not for example, a draft.
The decedent lacked the testamentary capacity to make a will. A person is deemed competent to make a will as long as they understand the composition of his or her estate and know the natural objects of their bounty regardless of any illness or other infirmity.
The decedent was unduly influenced by a person in a fiduciary relationship with the decedent who stands to gain from the will. If such a relationship is found to exist, the burden of proof often switches from the contestant to the proponent of the will (the executor).
Some or all of the will resulted from fraudulent representations or mistaken beliefs of the decedent. Fraud would result if the decedent were intentionally provided with false information. Innocent misrepresentations to or mistaken beliefs by the decedent though, would generally not invalidate a properly executed will.
It is usually advisable to consult an attorney when you think someone may challenge your will. The attorney can explain your state law to you in general and in particular the effect in your state of an “in terrorem” clause. Such a clause in your will attempts to limit challenges by providing that any challenger will be disinherited. Some states do not recognize such clauses as against public policy.
If you expect a will challenge you may also want to take such precautions as videotaping the signing of your will and where appropriate, obtaining documentation from a physician that in your doctor’s opinion, you are competent to make a last will and testament.
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