Legal Grounds for Contesting a Will

By Kristin Shea

You cannot contest a will merely because you believe you should have received more -- you must establish legal grounds. A person with standing -- a beneficiary or somebody who could reasonably expect to be named as a beneficiary -- can file a petition with the court during probate. If the court determines that there's sufficient legal grounds, it can invalidate the entire will or particular provisions of the will.

Improperly Executed Will

Each state has its own laws governing the execution of a will, and you can contest a will that fails to meet one of your state’s requirements for properly executing the will. For example, all states require that the testator sign and date the written will, and that witnesses attest to the testator’s act of signing the will. States usually require at least two witnesses.

Testamentary Capacity

Every state requires the testator to have testamentary capacity. A will usually contains language that describes the testator as being of sound mind, or uses similar language to describe the testator’s state of mind at the time he signs the will. Testamentary capacity basically means that the testator recognizes family and friends, and appreciates the extent and nature of the property he owns.

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Undue Influence

Undue influence refers to the manipulation of the testator by a trusted person with the intention of influencing the provisions of the testator’s last will to benefit the manipulating person. Basically, in establishing undue influence, you will need to show that the will represents the beneficiary’s intentions instead of the testator’s intentions. The American Bar Association lists several predisposing factors for undue influence. Predisposing factors -- such as a spouse’s death, depression, isolation, dependency, mental illness, diminished mental capacity and undetected diseases -- can render a testator more susceptible to manipulation.

Intention of Testator

If a testator intends to disinherit a child, she should expressly state this intention in the will. Otherwise, if the disinheritance is challenged, a court might rule that disinheritance of a child was an unintentional omission.

Vulnerability Enhancers

The American Bar Association notes that a caretaker can increase the dependency of the testator by creating circumstances in which the testator more heavily relies upon the caretaker. A trusted person can poison the testator’s relationships with close family and friends, and thereby isolate the testator. Non-involvement of relatives can contribute to the likelihood that the manipulative beneficiary succeeds in unduly influencing the testator by allowing the manipulator unencumbered access to the testator.

Rights of Spouses

A testator cannot disinherit a spouse in any state. All states have different statutes governing the property rights of spouses, and these laws supersede a spouse’s disinheritance, whether intentional or unintentional, under the testator’s will.

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How Does a Person Contest a Will?


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How to Execute Wills

States impose few restrictions on who can make a will -- any adult who is of age and able to reason qualifies. Testators in some states can disinherit spouse and children, as long as they use clear language, however many community property states require that a spouse get a share of the property. States are picky about executing wills, and the term "execution of a will" actually describes how a will must be signed. Consulting with an attorney can ensure that the process is handled correctly, and in accordance with state laws.

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