Challenging A Will

A number of problems can arise from the instructions regarding how to dispose of a decedent’s assets under a will. One of the most common issues involves someone challenging a will based on a number of reasons related to its validity, its plan for the  distribution of assets or a combination of the two.  For the purposes of understanding, one can divide will contests into four major areas: challenges based on execution; interpretation;  undue influence and fraud; and the enforcement of debt obligations against the estate.

Contesting a Will’s Execution

A valid will (a will whose language is legally binding) must be executed correctly. What this entails is that a will must comply with the technical requirements the law deems a valid will should have. These technical requirements include

    •    The will shall be signed by the testator or in the in the testator's name by some other person in the testator's presence and by the testator's direction, or by a conservator appointed by a court order.

    •    A will normally should be witnessed by being signed, during the testator's lifetime, by at least two persons each of whom being present at the same time, witnessed either the signing of the will or the testator's acknowledgment of the signature or of the will and  understand that the instrument they sign is the testator's will.
   
A will that does not comply with these requirements may be challenged by an interested party. The reason that motivates a party to contest a will rests on challenging it as invalid based on some defect in its technical requirements. These questions often arise if the testator lacked testamentary capacity at any time during which the will might have been executed or was unduly influenced to prepare a will to benefit someone unfairly.   


Contesting a Will’s Interpretation

A will’s executor and the probate court are responsible for determining how a will is interpreted. Often, a will’s language requires little interpretation.

However, circumstances arise in which the language in a will can be construed several different ways. This ambiguity comes from situations where the will is not drafted clearly, or potential heirs and beneficiaries read a different interpretation into a will.

In this type of case, will contest may be waged by a party who feels a will is not being interpreted properly. As such, a will challenge based on interpretation will involve how assets are distributed under a will, with the party asserting that their particular interpretation (rather than the executor’s interpretation) should dictate how assets are distributed.  

These types of challenges involve reading into the testator’s intent at the time of drafting the will, requiring proof that the manner in which the will was drafted did not adequately reflect the testator’s intent. Commonly this type of challenge involves the next type of contest discussed, challenges related to fraud and undue influence upon the testator by an interested party.


Contesting a Will Based on an Allegation of Fraud of Undue Influence.

Situations may arise under which an interested party may challenge a will based on an allegation that the terms of the will were the product of fraud or undue influence. Commonly, a person challenging a will alleges that, due to the behavior of a third party, the testator added terms in the will that normally would not have been added, but for fraud or undue influence.

Further, under this type of will contest it is often alleged that the testator signed the will  against their will or without a full understanding of the circumstances surrounding the will. Challenges alleging fraud and undue influence can involve a number of contested issues that often do not have clear evidence indicating or negating that fraud or undue influence occurred.

Will Contests to Enforce Debts or Other Contracts

When managing a decedent’s estate, the executor must take into account all debts owed by the decedent. Circumstances arise under which a party believes that he or she is a debt obligation by the decedent. In this case, the party that feels he or she is owed money by the decedent's estate must file a will contest to include their alleged debt as a part of the estate distribution plan.

A will contest to enforce a debt or contract must provide sufficient proof, that while living, the decedent engaged in an agreement with the contesting party that created a debt obligation. Therefore, the probate court must look into the proof of the debt in order to determine if it valid.

An attorney experienced in contesting a will can assist you in assessing your potential claim and provide advice as to the best way to proceed with this challenge. Will challenges often involve complex questions related to proving a claim against an estate, therefore if is important to discuss your options with experienced counsel.