There have been countless movies about families fighting over the will of a deceased patriarch or matriarch. In real life, however, wills are rarely challenged during probate. Nonetheless, spouses, children, beneficiaries or non-beneficiaries with an interest will have reasons for disputing a will. If you want to challenge the will, you need to file a petition in the state probate court where the will is in probate.
The courts will closely follow the details outlined in a valid will by the deceased testator. If the dispute is successful, a probate court will revoke all or part of the will. If the will is completely revoked, the court divides the estate as if the invalid will never existed. If it is partially voided, the court may reinstate a prior provision or version of the will.
Testamentary capacity often challenged
Often the argument for a successful challenge revolves around the testator’s mental capacity (also known as testamentary capacity). Adults are assumed to have testamentary capacity. Still, a common reason to challenge a will is that the person did not have testamentary capacity. In this case, the testator writes a new will or falls prey to undue influence. When this happens, it is often because the testator has dementia or some form of senility or insanity. They may not understand the consequences of their actions. It may be a matter where the testator was under the influence of medication.
The courts will measure testamentary capacity by determining if the person:
- Knew the value and extent of the property
- Knew who they would be expected to provide for
- Understood the disposition or consequences of the change
- What a will means
Ill intent by others
Potential beneficiaries may also claim that someone took advantage of the testator. It can involve exercising undue influence on their thinking, coercing them to change their will. It can also be a matter of forgery or fraud committed to unduly benefit another beneficiary.
New will vs. the old one
The courts will typically follow the most recent valid will even if the new will surfaces during the probate process. The testator should destroy earlier versions of their will to avoid confusion, but that is not always possible — this is why it is essential to date the will.
It is often a complex issue
Contesting a will can be difficult for families, time-consuming and involves many variables, so it is often essential to discuss options with someone who understands the process and has experience handling disputes.
