In this week’s discussion of basic estate planning questions in North Carolina, we are going to look at the will contest. Also known as challenging a will, a will contest is something that might sound like it’s more common than it is, probably because it is more often portrayed in films and fiction then it occurs in real life. A will contest can arise only in specific situations when particular legal criteria have been met.
If you’re considering a will contest, you should always speak to a probate and estate planning attorney first. Until then, here are some basic issues you should understand about a will contest, what it is, and how it works.
Will Contests and Standing
Let’s say you want to challenge a will in court. How you do this? When do you do it? Whose will can you challenge?
To understand will contests, you first have to understand that not just everyone can challenge a will. Even though wills become public documents when submitted before a probate court, that doesn’t mean that any average person can walk in off the street and contest the will. In order to file a will contest, you have to have what is known as standing.
To have standing for a will contest, you essentially have to be one of three types of people. First, you have to be someone who stands to inherit from the will you want to challenge. Second, if you aren’t someone who stands to inherit from that will, you have to be someone who would have inherited from a previous will written by the same person. Third, if you don’t fall into either the first or second category, you have to be someone who would have inherited from the deceased person if that person had died without leaving behind a last will and testament.
Will Contests and Grounds
So let’s say you have standing. Can you simply file a will contest because you don’t like what it says?
No. In order to file a will contest, you also have to have grounds. Grounds are legally recognized reasons for invalidating a will that a court will accept. Though there are a wide variety of grounds that are possible, some are more commonly used than others.
For example, in order to make a last will and testament, a person, known as the testator, must be mentally sound. One common ground for filing a will contest is challenging the testator’s mental abilities. If you can show that the testator did not have the requisite mental capacity at the time he or she created the last will and testament, the court will refuse to accept the document as a valid expression of the testator’s desires.
