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Challenging a Will – Is it possible?

Yes, it does happen that someone challenges a will in probate court, testing the will’s validity. The usual grounds? That the deceased didn’t have the capacity to make the will or was unduly influenced — mystery writers love to leverage this plot point. However, probate courts assume that a signed and witnessed will is valid, so it’s going to be an uphill battle.

 

If you are a person or entity that is personally and financially affected by a wills terms, then you are one of the few that can challenge the validity of a last will and testament. If you qualify with one of those, then you have a legal standing. The following examples can help you find out who as a legal standing to file a will contest. However, this can get very complicated very quickly- so consult an attorney before deciding you should, or should not, proceed with a challenge.

  • Example one: Suppose someone dies without a will. In most states, his or her property goes to their spouse and children. Then, after those people to more distant family members if the person is not married and/or there are no living children.
  • Example two: The deceased has three living children, but only two are provided for in the will. The third child should have legal standing to file a will contest, but it is not assured the child will win. They would need to establish that he/she wasn’t cut out of the will intentionally, and besides that, the will isn’t valid- the deceased was under duress or mentally incapacitated at the time of writing it.
  • Example three: You were named in an older will, but your cut out or your share was reduced in a more recent version. Here, too, you’d have to establish the subsequent will is invalid for some reason.

So then — unless you’ve been named a beneficiary and/or have legal standing, you have to establish to the court’s satisfaction that the will should be declared invalid.

However, some wills have no-contest clauses that state that if a beneficiary files a will challen

 

ge, he or she will lose their inheritance. Of course, if a beneficiary has been cut out of a will, there’s really no reason not to challenge it. Not all states enforce no-contest clauses, so you’d need to check with an attorney, which you’d want to do anyway to discover whether you have reason and standing to contest the will.

Remember, it is difficult to challenge a will — and the vast majority of wills pass through probate court without issue. Wills are seen by the courts as the voice of the testator — the person who wrote the will. And because that person isn’t here to speak his or her wishes, courts stick quite stringently to the will.

Still, anyone who has an interest to gain from a will can challenge it. The most successful challengers have been spouses, and the most successful grounds are that the person lacked testamentary capacity, was unduly influenced, or persuaded to write the will in a certain way. And don’t forget that if the entire will is voided, the court will distribute property as if no will ever existed. Seeking counsel is warranted.

If you have interest in challenging a will, or find yourself the beneficiary of a will that someone else is challenging, call the Law Offices of Cheryl David at 336-547-9999 before making any decisions to ensure the best results.

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