Contesting a Will

In order to contest a will, the objectant must have “standing”, meaning they would legally be entitled to a share or a greater share of the estate if the will was declared invalid. “Standing” alone, however, is insufficient. There must also be grounds for contesting as provided below.

1. Undue Influence: Independent caregivers and caregiver children who end up being named primary beneficiaries under the will are often scrutinized for having prevailed upon the decedent to leave them the lion’s share of the estate. The various means alleged may be physical or mental abuse, threats and isolation of the disabled person. Even non-caregivers who had influence over mom or dad may be challenged where they end up with more than their fair share. As with any court proceedings, proof of the claim will need to be made.

2. Improper Execution: The formalities for executing a will must be strictly observed. The formalities include that the witnesses believed the decedent was of sound mind, memory and understanding. There must be two witnesses who signed in the presence of the testator and of each other. The testator must declare in front of the witnesses that they read the will, understood it, declare that it is their last will and testament and approve of the two witnesses to act as witnesses to the will.

3. Incapacity: Even if the witnesses testify they believed that the testator was capable to sign the will, a challenge may still be made that the person was not able to read the will due to a defect of sight or was unable to understand either the will, what property they owned or who their heirs were, due to mental incapacity. These latter claims will require medical proof.
Challengers should be wary of the “no contest clause”. This provides that any benefit the challenging party would have received under the will is forfeited if the challenge is unsuccessful. If the gift was substantial, even though not an equal share, the no-contest clause is a powerful disincentive to contest the will.

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