Information on Contesting a Will

by David Carnes

When a person dies leaving a will, someone may be dissatisfied with his share of the estate or be upset that he was not named as an heir at all. In some cases, it is possible to challenge the contents of the will. If the challenge is successful, the court may modify the contents of the will in favor of the challenger or set aside the will completely.

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Legal Standing

In order to contest a will, you must have a legal interest in the outcome of the challenge. You have legal standing if you are named in the will, if you were not named in the will but should have been or if you stand to inherit property from the state if the will is set aside. Simply being granted standing doesn't win the case for you – you must establish standing as a preliminary matter in order to make an argument at all.

Lack of Capacity

If you allege lack of capacity, you are saying the testator – the person whose will you are contesting – lacked the mental capacity to understand the nature and content of the will at the time she signed it. The time of signature is the only time that matters – the testator's mental capacity while the will was being drafted or when the testator died is irrelevant.

Technical Defects

State governments require that the will be signed by the testator or someone authorized by the testator, that the signing be observed by two or three witnesses and that the witnesses sign the will in the presence of each other. If any of these requirements have not been met or if signatures were falsified, the court may set aside the will. If there is a problem with the witnesses, the court may have them testify to establish the validity of the will.

Undue Influence and Fraud

You may have the court set aside or modify the will if you can establish that the testator was pressured into signing the will by someone who will benefit from its terms. Fraud includes situations in which the testator did not know that she was signing a will or was deceived concerning its contents.

Ambiguous Language

You may contest the interpretation of ambiguous language in a will. For example, the will may state that the testator wishes to give "my car to Bill, and the rest of my property to Fred." If the testator owned two cars at the time of death, Bill and Fred might dispute the ownership of one of the cars.

Superseded Will

A valid will is invalidated by a subsequent will. If you can establish that the testator signed another will after the date that the will that you are contesting was signed, the new will will prevail and the older one will be set aside.

Intestacy

If the court sets aside the will entirely instead of modifying it, the estate will pass to heirs through state intestacy laws. These laws distribute property exclusively to relatives of the deceased. If you are a relative, you might inherit a portion of the estate in this manner.