A will is a document that gives directions regarding the distribution of your assets after you pass away. You can ensure your assets' distribution to those of your choice by creating a will. It can be your spouse, family members, charity(ies), or any other individual(s) you wish.
All wills must go through the court, wherein they verify the validity before its execution. You must have valid claims to challenge a will since there is an involvement of a court.
The testator's immediate family, like a spouse, child, or sibling, are the ones most likely to challenge the will. It's usually tough to be successfully challenge a will, as the court considers a will to be the voice of the testator.
Challenging a will means legally contesting its legitimacy in probate court. The will becomes entirely or partly void if successful. A few common reasons for challenging a will are:
You can be successful in challenging a will if you can prove any of the following:
Any individual above the age of 18 has testamentary capacity. You can challenge the validity of a will by showing that the testator lacked the mental ability to make a will or did not realize the consequences of making a will.
Testamentary capacity is possible by proving that the testator was senile, insane, wasn't in the proper mental condition when creating the will, was under the influence of a substance, or had dementia.
For a will to be valid, it has to be in writing, signed by the testator, and attested by a lawyer in the presence of two witnesses who cannot be beneficiaries of the will. You can challenge a will on the grounds of failure if it doesn't comply with these regulations.
Some states also allow handwritten, unwitnessed wills called holographic wills, which are the easiest to challenge because of the witnesses' absence. They must be written and signed in the testator's handwriting to be valid.
You can successfully challenge a will if you can prove that an individual has written it under fraud or forgery. A will is also void if someone manipulates the testator into leaving some or all assets to the manipulator.
It's common for the testator to update their will, thereby making the older will inaccurate. The executor can still try and carry out the directions in the outdated will. This is why it's essential to update wills, destroy the older copies, and notify all those concerned after revising.
"Interested persons," including spouses, children, heirs, creditors, or others having valid claims against assets in the estate, can challenge a will according to probate law.
This doesn't mean that you can challenge the will on behalf of someone else or if you feel you weren't given a fair share of the estate. Those who can challenge a will fall into the following categories:
The first requirement to contest a will is "standing." The standing refers to a beneficiary of the will or those who receive the assets' share if the testator dies without creating the will.
Beneficiaries are those who have been named in a will. It includes spouses, children, heirs, other relatives, or even friends. It can also be charities, organizations (church, universities), or even pets.
Heirs should receive a share of the estate if the testator dies without a will per the intestate laws. They can challenge the will if they were entirely left out or were given a disproportionate share of the estate. However, minors can only challenge a will after becoming adults.
A few steps to challenge a will successfully are:
The first step to challenge a will is to investigate whether you have valid claims to contest it. It includes:
The next step is to file a petition in your probate court to challenge the will. Although you can do this yourself, if they have a large estate, hiring an attorney is better.
The challenging parties can resolve the dispute through mediation before entering the court. You have to ensure you have an experienced legal team to back you in the cases where you require court proceedings.
It's vital to gather evidence to support your claim. The evidence includes obtaining documentation and finding witnesses. The more evidence, the better the chances are of a successful claim.
Challenging a will is a time-consuming process dragging on for months or years. Hiring an attorney to represent you is generally expensive, so ensure you have enough ground and evidence to support your claim before challenging.
If you're looking to set up an estate plan, Complete Wills can help you start. We have a dedicated and experienced support team to guide you in each step of the process. All of our documents are state-specific and attorney-approved, with a 100% money-back guarantee if you're unsatisfied with your documents.