A Practical Guide: The 5 Most Common Grounds for Contesting a Will
When a will is challenged, the person contesting it (the “challenger” or “contestant”) must prove to the court that the will is invalid based on one or more specific legal grounds. Simply feeling that the will is unfair is not enough. The court is focused on whether the document is a true and valid reflection of the testator’s wishes, free from critical legal flaws. Here are the five most common reasons a will is successfully contested in court.
1. Lack of Testamentary Capacity
At its core, “testamentary capacity” refers to the testator’s mental state and ability to understand what they were doing when they signed the will. For a will to be valid, the testator must have met a specific legal standard of mental competence at the moment the will was executed.
This standard generally requires the testator to have understood:
- That they were creating and signing a will.
- The nature and extent of the property they owned.
- Who their closest family members and natural heirs were (the “natural objects of their bounty”).
- How the will would distribute their property.
It’s important to note that this is a lower standard than other forms of legal capacity. A person can have memory lapses, eccentricities, or even a diagnosis of early-stage dementia and still possess the testamentary capacity to create a valid will. The critical question is their state of mind at the specific time of signing.
Example: An 88-year-old father, George, is in the advanced stages of Alzheimer’s disease. He often doesn’t recognize his own children and believes he owns a farm that was sold 30 years ago. His new, live-in caregiver, who has only known him for two months, takes him to an attorney and he signs a new will leaving his entire estate to the caregiver. His children could contest this will on the grounds of lack of testamentary capacity, using medical records and testimony from friends and family to show that at the time of signing, he could not possibly have understood the nature of his assets or even recognized his own children.
Proving lack of capacity often relies on evidence such as medical records, sworn testimony from witnesses who observed the testator’s behavior around the time the will was signed, and sometimes expert opinions from geriatric psychiatrists or neurologists.
2. Undue Influence
Undue influence is one of the most common and complex grounds for contesting a will. This claim argues that the testator was not acting of their own free will but was instead manipulated, coerced, or pressured by another person into creating or changing a will to benefit that person.
Undue influence is more than just offering advice or making a heartfelt plea. It involves a level of psychological control where the influencer’s desires overpower the testator’s own wishes. Courts typically look for a combination of “red flags” when evaluating a claim of undue influence:
- A Confidential Relationship: The influencer held a position of significant trust and confidence with the testator, such as a caregiver, a power of attorney holder, a close family member, or a spiritual advisor.
- A Susceptible Testator: The testator was vulnerable due to age, illness, physical or emotional dependency, or isolation.
- The Influencer’s Involvement: The alleged influencer was actively involved in procuring the will, such as hiring the attorney, being present during discussions, or providing instructions for its contents.
- An Unnatural Disposition: The will makes a surprising or “unnatural” change, such as disinheriting close family members in favor of the new influencer.
Example: Martha is a widow in her 90s who relies completely on her son, Tom, for her daily needs. Tom moves in with her and begins to restrict access from his other siblings, telling them, “Mom is too tired for visitors.” During this time, Tom drives Martha to his own attorney and is present when she signs a new will that disinherits her other two children and leaves her entire multi-million dollar estate to Tom. The other siblings could argue undue influence, pointing to Martha’s dependency, her isolation from them, and Tom’s direct involvement in creating a will that dramatically benefited him at their expense.
3. Fraud or Forgery
This category involves outright deception or criminal action. While sometimes difficult to prove, evidence of fraud or forgery will almost certainly invalidate a will. These claims typically fall into two categories.
Fraud: This occurs when the testator is intentionally deceived into signing a will.
- Fraud in the Execution: This is when the testator is tricked about the nature of the document they are signing. For example, they are told they are signing a lease or a power of attorney, but the document is actually a will.
- Fraud in the Inducement: This is when the testator signs the will knowing what it is, but their decision to do so is based on lies they were told. For example, a daughter might falsely tell her father that her brother has a severe gambling problem and will squander any inheritance, inducing the father to write the brother out of the will.
Forgery: This is more straightforward. Forgery is the claim that the signature on the will is not the testator’s. It may have been faked by someone else, or a completely fabricated document was created with a forged signature.
Example: After their father’s death, two siblings are presented with a will that leaves everything to a distant cousin. They know their father’s signature well, and the one on the will looks nothing like it. They could contest the will on the grounds of forgery, likely hiring a forensic handwriting expert to analyze the signature and compare it to known, authentic samples of their father’s signature.
4. Improper Execution (Formalities Not Met)
Unlike claims based on the testator’s mental state, this ground is purely technical. Every state has very strict and specific laws, known as “will formalities,” that dictate exactly how a will must be signed and witnessed to be legally valid. If these rules are not followed to the letter, the will can be invalidated, regardless of the testator’s intentions.
While the exact requirements vary by state, they generally include:
- The will must be in writing.
- The testator must sign the will (or have someone else sign on their behalf, in their presence, and at their direction).
- The signing must be witnessed by a specific number of competent witnesses (usually two, but sometimes three).
- The witnesses must sign the will in the testator’s presence.
Mistakes often happen with DIY or homemade wills where the testator is unaware of these rigid legal requirements.
Example: David handwrites a letter before a major surgery, stating, “If anything happens to me, I want my entire house and my savings to go to my beloved niece, Sarah.” He signs it and puts it in his desk. He has no witnesses. Even though his intention is crystal clear, if his state requires two witnesses for a valid will, this document would likely be deemed invalid by a probate court due to improper execution. His estate would then be distributed according to the laws of intestacy, and Sarah might receive nothing.
5. Existence of a Later, Valid Will
A person can write multiple wills throughout their lifetime. However, the law generally recognizes only the most recent one as valid. A properly drafted will should include language explicitly revoking all prior wills and codicils (amendments). Sometimes, a family may find and submit an older will to probate, only for a newer one to be discovered later.
The basis of the contest in this case is that the will submitted to the court is not, in fact, the “last will and testament.” The person who discovers the newer will would file it with the court and challenge the validity of the older one.
Example: A man dies, and his children from his first marriage find a will from 2010 in his home office that divides his property among them. They file it with the probate court. A week later, his second wife finds a different will, properly signed and witnessed in 2022, tucked away in their safe deposit box. This newer will leaves the majority of the estate to the second wife. The wife would contest the 2010 will by presenting the 2022 will to the court. If the 2022 will is proven to be validly executed, it will supersede the older one.
