When can a will be contested?

There may be certain situations when a family member wishes to contest a will. For that reason, family members and others wishing to contest a will should know when they may be able to do so.

Testamentary capacity

Testamentary capacity is needed to enter into a will. It is important that the testamentary capacity requirement is met otherwise it may be possible to challenge the will. Testamentary capacity requires that the estate planner knows the extent and value of their property; knows who their beneficiaries are; and knows that they are disposing of their property and understands the impact of that disposition.

Fraud, forgery or undue influence

It may be possible to challenge a will if fraud, forgery or undue influence played any part in formation of the will.

Another will trumps the will being executed

A newer will may invalidate an older, outdated, will. It is best that a prior will is destroyed but this does not always happen. The existence of multiple wills can create confusion and may lead to a will challenge.

Problems with the provisions in the will

If any of the provisions in the will are not legal, it may void the will and be the basis to challenge the will. In addition, certain provisions usually must be included in the will so anyone seeking to challenge a will should be familiar with what provisions are required in the state where the will is being probated.

The witnesses to the will were not sufficient or appropriate

Typically, the will must be signed by two adult witnesses who witnessed the estate planner executing the will sign the will. Also, typically, the witnesses must be considered disinterested and must not benefit from the will.

If the need to challenge a will comes up, how a will contest works and the circumstances under which a will can be challenged should be familiar to family members. Wills are an important part of the estate planning process which is why it is helpful to know the how and when of challenging them. It is also helpful for estate planners to know how they can avoid a will contest when setting up their estate plan.