Only about one will in a hundred is challenged in court. But if someone makes a will that doesn't fulfill certain legal requirements, or if the will-maker wasn't of sound mind, a would-be heir or beneficiary can challenge it in probate court after the will-maker's death.
If a will appears valid and it was properly witnessed, it's often difficult to convince the court to rule it invalid. But there are some arguments that can work when you want to get a will thrown out. Here are four ways to contest a will.
For your will to be valid, you must have been of "sound mind" when the will was made.
The mental ability needed to create a valid will (called "testamentary capacity") isn't a tough standard. Forgetfulness or even the inability to recognize friends doesn't, by itself, prove incapacity.
Usually, a court faced with a question of mental capacity will ask whether the will-maker understood they were making a will, as well as key information such as:
The court will look at the will-maker's mental capacity at the time they made the will—so if the will-maker made the will during a period of lucidity, the will is usually valid.
In a lawsuit over mental capacity, the testimony of people who saw the will-maker at or very near the time the will was signed is typically very important. That might include:
In one case challenging the capacity of a will-maker, the court ruled that the opinion of an attorney who barely knew the will-maker but saw him the day the will was signed was more relevant than the testimony of a doctor who had formed an opinion only from medical records. (In re Bosley, Pa. Super. Ct. 2011.)
You can get a will declared invalid if you prove in court that it was obtained by "undue influence." That usually involves someone in a position of trust—like a caregiver or adult child—manipulating a vulnerable person to leave all, or most, of their property to the manipulator instead of to the people who would have been expected to receive it.
In other words, the will accomplishes the wrongdoer's goals and not the goals of the will-maker. For instance, a caregiver might use undue influence to convince a woman who's always been close to her family to cut all of her children and grandchildren out of her will, leaving everything to the caregiver instead.
Of course, you can contest a will based on fraud or forgery. For example, you might claim that a will-maker was tricked into signing a document—that they didn't know they were signing a new will or that they were misled about the changes made to the will.
You could also challenge a will if you believe that a signature was forged—either the will-maker's or a witness's. Typically, these claims go along with allegations of undue influence and lack of mental capacity.
A will must be dated and signed in the presence of at least two adult witnesses who also sign the will. In most states, the witnesses can't be people who are named to inherit property under the will.
About half the states allow handwritten, unwitnessed wills to be admitted to probate. These documents are called "holographic wills" and must be written and signed entirely in the handwriting of the person making the will. (Some states also require that they be dated.)
Because there are no witnesses, holographic wills are easier to challenge than standard wills (with witness signatures). In states that don't allow holographic wills, these wills are simply invalid. In states that do allow them, the probate court must be satisfied that the document is actually in the deceased person's handwriting and was intended to serve as a will.
Making a will is a good way to ensure that if you die, your children are cared for and your property is distributed as you wish. Proper estate planning allows you to make informed decisions, get your affairs in order, and make things easier for your family after you're gone.
Most people don't need a lawyer to draw up a simple will. Powerful tools, like Nolo's WillMaker, can help you create a wide range of estate planning documents. But if you anticipate family conflict over your will, it's best to consult with an estate planning lawyer.