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.

Protect your loved ones. Start My Estate Plan

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.

Protect your loved ones. Start My Estate Plan
How Does a Person Contest a Will?
 

References

Related articles

What Constitutes Fraud When Contesting a Will?

One common ground for contesting a will is that the will was the result of fraud. If you can prove fraud, some or all of the will may be invalidated, and the property will pass according to the state's rules for intestacy; that is, for people who die without leaving a will or other means to dispose of their property.

Can You Divorce Your Wife for Not Consumating the Marriage?

In many states, the refusal of spouses to engage in sexual relations with their husband or wife may help establish grounds for divorce on claims such as desertion or abandonment. Other states require parties to a "no-fault" divorce, where neither spouse blames the other for the dissolution of the marriage, to refrain from sexual intercourse for a period of time before the divorce can become final.

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.

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

Related articles

Contesting a Will in Kansas

In Kansas, only an heir or beneficiary may contest a will. An heir is a relative who would be entitled to an ...

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 ...

Laws Pertaining to Contesting a Will in Arizona

Probate is the legal proceeding used to validate a will and give legal authority to the executor, the person overseeing ...

Facts About Wills

Your last will and testament is the only way that you will be able to control the distribution of your assets after you ...

Browse by category
Ready to Begin? GET STARTED