Can a Will be Contested?

Updated: Oct 12

Netflix produce dozens of shows about family feuds and in reality, YES, they do happen. The thing is, you cannot challenge or contest a Will simply because you do not like the outcome or because you believe that you deserve more, or less, although that is unlikely.

There are generally four reasons to contest a Will, and most of the time, it is very difficult to prove any of them. This means that you will likely spend a significant amount of money on legal, expert and court fees.

If you manage to prove that one of the four reasons does exist, the outcome is that the entire Will will be thrown out and the estate proceeds will be treated as though the decedent had never left a Will at all. It is worth considering if this is what you want to achieve before challenging a Will.

1. Formal validity
2. Mental capacity 
3. Fraud
4. Under the Influence

1. Formal validity

A problem with how the Will was written can lead to it being declared invalid. This is the most common reason why a Will may be found invalid. Writing of the Will includes how the Will was executed.

If the testator (person signing the Will) wrote their Will in accordance with applicable laws, there should not be any problem, but if one of the conditions as set out in the law was not respected, there could be issues around the validity of the Will.

For instance, the Will is likely to be invalid when the witnesses, where required, were not in the same room as the testator or did not see the testator actually sign the Will. Additionally, the witnesses or their spouse cannot be beneficiaries and that situation happens too frequently.

2. Mental capacity

One of the other commonly grounds to contest a Will is that the testator did not have testamentary capacity, sometimes called mental capacity. A screaming wife does not mean anything here.

Testamentary capacity does not require that the testator be 100% mentally healthy altogether. In certain states or countries, the standard is a bit lower. If the testator understood what his assets are, who his heirs and beneficiaries are and if he understood the effect of the Will, then he had the mental capacity to make the Will, which is something that even people in early stages of dementia can still fulfil.

The testimony of the witnesses to the execution of the Will becomes crucial in cases such as this, and still, they usually have no particular expertise on the subject matter. So, absent a doctor's visit or an adjudication of incapacity within days of the execution of the Will, lack of testamentary capacity is very difficult to prove.

3. Fraud

A Will procured by fraud is a Will that the testator is tricked into signing. For example, the testator might be presented with a document which is supposed to be a deed or a power of attorney, but turns out to be a Will, the Will was therefore obtained by fraud.

Fraud tends to go hand-in-hand with lack of testamentary capacity because most people would review the document, at least to some extent, before signing. But fraud is nonetheless a separate ground for contest.

The problem with proving that a Will was procured by fraud is that the testator can no longer be questioned about what he thought he was signing, obviously, and this is where country/state laws come into to play. For instance, witnesses may be asked what they thought the testator was signing.

The Will might be declared invalid if the testimony of the witnesses does not add up, but more likely because it wasn't signed properly, not necessarily because it was procured by fraud.

4. Under the Influence

A Will is also invalid if the testator was unduly influenced at the time of signing. A common example is the full-time caretaker who has taken complete control of all of an elderly parent’s day-to-day life and influenced them into agreeing to just about anything, including signing a Will in their favor.

Writing your Will is the very first step, and it’s an important one. But that’s not enough. In the digital age, the next step is to store your Will online. Otherwise, what happens if your person of confidence is not able to find your Will in a timely manner? liteWill is the only Will registration platform that is available globally and that provides the option to store your Will online. ‘A Will that is not online is like a Will that does not exist’.

This portion of the website is for information only. The statements and opinions are the expression of their author, not of liteWill, and have not been evaluated for accuracy, completeness or changes in the law. Information contained in this article is not a substitute for tax or legal advice.

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