In some circumstances, a family member or members may wish to contest a will. They should know the reasons for contesting a will and when it might be possible to contest a will.
When a will can be contested
A will may be challenged as part of probate litigation for several reasons including:
- The estate planner lacked testamentary capacity – testamentary capacity is required to execute a will. Typically, the estate planner must be 18 years or older. In addition, the estate planner must know the value and extend of their property when executing a will and know who their beneficiaries are, that they are disposing of their property with he will and how this impact the distribution of property in their will. If the estate planner did not meet any one of these requirements, it may be possible to challenge the will.
- Fraud, forgery or undue influence – if the estate planner is considered a vulnerable person that may have been manipulated in the formation of their will, it may be possible to challenge the will and invalidate it on those grounds. The existence of any fraud, forgery or undue influence may make it possible to challenge the will.
- Sufficient and appropriate witnesses – witness and signature requirements must be met for a will to be valid. This typically includes that two disinterested witnesses witness the estate planner signing their will. If these requirements are not met, such as one of the witnesses is named in the will, the validity of the will may be challenged.
- A newer will trumps an older will – if there is a valid will that is newer in time, it may invalidate an older will that is different. It is always best to destroy an older will.
Additionally, there are several other reasons a will may be contested. One of the primary goals of the probate court is to achieve the wishes of the estate planner and that is what it will seek to do. Families caught up in a will contest should know when a will can be challenge and how to defend against a will contest if that is what they wish to do.