Attacking a Will

When a person dies with an effective will in place, the will may be submitted to a court for “probate.” During this court procedure, the will can be declared valid and binding on the estate of the decedent. In addition, debts are paid, property is sold, and the estate’s assets are distributed.

Even though probate laws, rules and procedures are governed by state statutes, a Uniform Probate Code (Uniform Code) was introduced in 1969, and revised thereafter. Approximately one-third of the states have adopted modified versions of the Uniform Code.

Commencing Probate and Contesting the Will

Upon the death of the “testator,” an existing will is usually submitted to a court for a determination of its validity. Under the Uniform Code, the proponent of the will, often the executor named in the will, must show that the will was properly executed.

Before the court accepts the will, and even after it has been accepted, persons “interested in the estate” may object to, or “contest,” the will’s validity. If successful, the court may reject the proposed will.

Generally, persons are considered “interested” in the estate if they have some pecuniary interest; e.g., they are to receive property under the proposed will, they would receive a bequest or inherit property absent the proposed will, or are creditors of the decedent. Consistent with this general definition, the Uniform Code defines “interested person” to include the decedent’s heirs, the children and spouse, creditors, and beneficiaries, and others with a property right or claim connected to the estate.

Some states set forth time limits for contesting a will, but these limits vary significantly from state to state, ranging from a couple of months to a couple of years or more.

Problems with the Will

Most states have set forth requirements that must be satisfied before a will is deemed effective. For example, the testator must typically be of a specified age (e.g., an “adult” under state law, usually 18 or 21). In addition, the will must generally be in writing and signed by the decedent in the presence of witnesses (commonly two), who must also sign the will in each other’s presence. Failure to comply with these formalities can be a basis for invalidating the will.

A contestant may also demonstrate that the will has been revoked in whole or in part, i.e., the testator expressly took action intending to invalidate the proposed will. This is often accomplished by creating a new will that supersedes the old will, or by destroying the old will.

Mental Incapacity of the Testator

Most state laws require the testator to be “mentally competent” to make a will. The definition of this term varies, but often requires the testator to have recognized and understood:

  • The nature and extent of his property
  • The family members and others who would normally receive such property, i.e., “the natural objects of the decedent’s bounty”
  • What he was doing by signing the will
  • How the will disposes of the decedent’s property

Though it may be difficult, the contestant must generally establish mental incompetency at the time the will was actually executed. Evidence of the testator’s mental state or illness around that time may, however, indicate incapacity at the time of execution.

Undue Influence

Factors demonstrating that the will was the result of “undue influence” also vary. “Undue influence” is often defined as that which overcomes the will of the testator, such that the will reflects the intentions and desires of the one exerting the undue influence. Demonstrating this may also be difficult. Factors courts have considered include:

  • Existence of a confidential relationship of trust with the decedent, such as attorney-client, parent-child, caretaker, etc.
  • Opportunity to exert the influence
  • Susceptibility of the testator due to physical or mental infirmities
  • Unnatural dispositions of property in the will or changes from prior wills
  • Substantial benefit in the will to the one exerting the influence
  • The influencer caused the will to be prepared and/or assisted in its preparation

Fraud, Duress, or Mistake

As a general proposition, fraud takes place when a person makes a misrepresentation of fact, and benefits as a result of the misrepresentation. The testator must have relied on the misrepresentation, and have acted differently had he known the truth.

Results of a Will Contest

Will contests are often unsuccessful, and may be very expensive to pursue. If the will contains a “no-contest” clause, bringing the contest can cause the contestant to lose any bequest he would have received under the will.

If the court finds in favor of the contestant, the court may disregard the terms of the will, in whole or in part. Another result may be that the terms of a prior will may be revived, or there is no effective will. In the latter case, the decedent’s property may be distributed under applicable state law, as if there were no will at all, through “intestate succession.”