How the Executor Breaks a Will

By John Cromwell

For an executor to break a will, she must qualify as an interested party. An “interested party” is defined as someone whose rights would be influenced by the execution of the will. If the executor meets this requirement, she can contest the will at the probate hearing under one of five theories: fraud; mistake; undue influence on the decedent; the decedent lacked capacity when he drafted the will; or the will does not meet the state’s formality requirements. If the court determines that the will is defective in one of these ways, the estate will be distributed using a prior will or through the intestacy scheme, a scheme that governs how estates are distributed when there is no valid will. It is important to note that probate law is based on the state in which the decedent lived and that the standards can vary greatly.

Interested Parties

An interested party to a will is generally someone whose rights would be affected if the will is carried out. This normally includes anyone with a financial interest in the estate, such as the listed beneficiaries. creditors, and the decedent's family members. Another group of people who qualify as interested parties includes those who are given custodial responsibilities by the will. An example of these people are persons granted custody over the decedent's children, and individuals appointed to serve as trustees over a trust created using property from the estate.

Executor as Interested Party

Probate is a function of state law, so whether an executor qualifies as an interested party depends on how the state defines an interest in the will. If the executor is a beneficiary, a relative of the decedent or a named custodian in the will, he will generally be considered an interested party. If a person’s only role in the will is as executor, some states have found that the executor is not an interested party. If you are an executor and you wish to contest a will, consult with an attorney in your area to determine if you qualify as an interested party.

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Grounds: Fraud, Mistake, Undue Influence

A will is meant to express the decedent’s wishes about how his property should be distributed. If something casts doubt on the will as an accurate depiction of the decedent’s intent, it may require that the will be voided. If the testator is knowingly given misleading information that causes him to draft the will in a certain way, that will is considered to be fraudulently drafted and is voided. If evidence shows that some provisions in a will were recorded by accident, those sections will be voided. If a decedent is forced or manipulated to sign a will that does not reflect his wishes, the will is generally voided by reason of undue influence.

Grounds: Testamentary Capacity

An individual who drafts a will must be of “sound mind,” meaning he is capable of understanding the implications of the document he is creating. This generally requires that the decedent be over the age of 18 and able to make binding legal decedents when he signed the will. Wills drafted by individuals suffering from mental afflictions such as dementia will generally be voided.

Grounds: State Drafting Laws

For a will to be valid, it must conform to the formal will requirements of the state in which it was drafted. Generally, this requires that the will be signed by the decedent in the presence of two witnesses, although these standards vary. If the will in question does not conform to the state’s will-drafting requirements, a probate court will generally void it.

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Rules for Witnessing a Will


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