Challenging a will, also called contesting a will, is a formal objection as to the validity of a will. A will is often challenged when an interested party believes that the will is invalid in some way. Challenging a will is not an easy task, but it can be done.
Who can Challenge a Will
Only someone with “standing”, also known as an “interested person” can challenge a will. An interested person who is someone who:
- Is named on the face of the will (a beneficiary)
- Would benefit if the will was found invalid
Interested persons may include spouses, children, heirs, devisees, or anyone who may have a claim against the estate.
Grounds to Challenge a Will
Lack of Capacity
The law requires that the person creating a will has “testamentary capacity”. Testamentary capacity means that the person is an adult of at least 18 years old and has “the capacity in executing a will to understand the nature and extent of one’s property and how one is disposing of it and to recognize the natural objects of one’s bounty”.
An adult may have a lack of capacity due to dementia, insanity, or being under the influence of a substance. A will can be challenged on the grounds of lack of capacity if an interested person can show that the adult did not understand the consequences of making the will at the time the will was created.
An interested person can challenge a will that they believe was created fraudulently, by means of forgery, or through manipulation.
Lack of Execution
Each state has their own laws, but generally a will must meet the following elements to be considered valid:
- The will is in writing (not verbal)
- The will is singed by the testator (the person who created the will)
- The testator’s signature is witnessed and attested by two non-interested persons
- The will is signed and stamped by a notary
If a will lacks any of the above elements, it becomes susceptible to challenge.
In most states, you challenge a will by filing a petition with a probate specific court. Probate courts specialize in the assets and debts of deceased people and the issue that arise from administering their estates. The petition must be filed in a probate court that has jurisdiction of the deceased’s estate and can involve specific deadlines and rules for the challenger.
More and more wills are including “no-contest clauses”. A no-contest clause automatically disinherits any person who challenges the validity of the will. So, challenging a will just because you think your inheritance should be higher could potentially cost you all of your inheritance per the no-contest clause.
If you are considering challenging a will, contact a lawyer, like an estate planning attorney Phoenix, AZ relies on, today to learn more about the pros and cons of challenging a will.
Thanks to our friends and contributors from Kamper Estrada, LLP for their insight into challenging a will.