How to Invalidate a Last Will & Testament

By David Montoya

A will contains an individual's final wishes. As a result, any attempt to invalidate it must meet a high standard of proof to succeed in court. Further, some wills contain a no-contest clause in which any beneficiary who attempts to contest the will's validity automatically forfeits the share of property bequeathed to him under the will. To challenge a will's validity, you must follow the probate laws of the state handling the decedent's estate.

Step 1

Look over the will to verify it meets all state requirements for a valid will. For example, some states require two witness signatures. Therefore, the appearance of only one witness signature may create enough doubt in the judge's mind to invalidate the will. Another common error in a will is the lack of the testator's signature, the deceased individual who executed the will.

Step 2

Assemble evidence, including documentation and witnesses, to show the testator did not act under his own volition when writing the will. Common arguments used to demonstrate a testator's "lack of free will" include fraud, undue influence and duress. Undue influence occurs when a beneficiary impedes the testator's free will through improper influence, such as manipulation or deception. Fraud, on the other hand, involves a misrepresentation or lie relied upon by the testator when crafting the will. Finally, duress occurs when a third party uses coercion or force to get the testator to sign the will.

Protect your loved ones. Start My Estate Plan

Step 3

Contact witnesses, locate documentation and review any evidence that shows a lack of mental capacity on the part of the testator. Since a will document must accurately reflect the intent of the testator, it may be considered defective if the testator is shown to have lacked testamentary capacity at the time he drafted the will, i.e. was not "of sound mind." In general, a testator has testamentary capacity if, at the time he drafted his will, he understood the nature and value of his property and that he was conveying it to known persons upon his death. A testator's lack of capacity - due to mental illness or incompetence, for example - may invalidate the will, in whole or in part.

Step 4

Present the evidence you have compiled to the probate court. The judge may accept the entire will as valid, invalidate the entire will or invalidate only those parts of the will tainted by the defect.

Protect your loved ones. Start My Estate Plan
What if an Executor of an Estate Destroys the Decedent's Last Will & Testament?
 

References

Related articles

How to Add an Addendum to a Will

Adding an addendum to a will requires a document called a codicil. If drafted appropriately, the codicil will be considered a part of the will and read alongside the original document when the estate is probated. Probate codes, which define the drafting requirements for wills and codicils, are written by each state. However, the Uniform Probate Code has significantly influenced all of the state probate codes. Therefore, the UPC is a good basis for a general discussion on how to amend a will. You should check the provisions specific to your state to ensure that your codicil is properly drafted.

Advice on Contesting Wills

A will contest or a will challenge is a court case brought to dispute the validity of a will, according to FindLaw. In most cases, a will contest is filed with the probate court, and the executor of the estate is responsible for defending the will's validity. It may be wise to hire an attorney for a will contest. He will know your state's laws regarding will challenges, and may increase your chances of success.

How to Break a Will or Probate

Probate is court-supervised administration of a testator's last will and testament. Upon the death of the person making the will, the executor files the will in probate court and begins to gather and inventory estate assets. Although the executor is usually selected by the testator and named in the will, the court reviews the procedure to assure honesty, accuracy and fairness. The court only approves a valid will, so anyone wishing to "break" a will or probate must allege and prove facts making the will invalid.

LegalZoom. Legal help is here. Start Here. Wills. Trusts. Attorney help. Wills & Trusts

Related articles

How to Contest a Fraudulent Last Will

The probate process is designed to ensure that only valid, accurate wills are enforced by court orders and as such, ...

How Is a Beneficiary Removed from a Will?

When a person is named in a will, he is called a beneficiary. Heirs, on the other hand, are individuals who stand to ...

Contesting a Will as a Beneficiary

Will contests take place in probate court: One of the functions of probate court is to hear any disputes pertaining to ...

How to Prove a Will When Your Subscribing Witnesses Are All Dead or Unavailable

Wills can be an effective estate planning tool for distributing property after your death. But, for its terms to be ...

Browse by category
Ready to Begin? GET STARTED