The difficulties of challenging a will

The difficulties of challenging a will

| Jun 18, 2020 | Will |

When your loved one dies, you may have expectations as to what you will inherit from him or her. But what if the deceased’s Last Will and Testament fails to make the inheritance provisions for you that you expected? Can you challenge the will? 

Challenging a will can be very difficult. It also represents an unusual legal proceeding since approximately 99% of wills go through probate without any problems. If you decide to challenge your loved one’s will, you need valid legal reasons to do so. Mere disappointment or anger that you did not inherit the things you thought you would is not one of those reasons. 

Valid will challenge reasons 

The most common reasons for a successful will challenge include the following: 

  • The deceased lacked the testamentary capacity to make his or her will. 
  • Someone unduly influenced the deceased to make the will provisions he or she did. 
  • The deceased made the will while under duress or as the result of fraud. 
  • The will contains fatal technical flaws. 
  • The deceased made another will that supersedes this one. 

Testamentary capacity 

Anyone who makes a will must be of sound mind at the time he or she makes it. However, testamentary capacity is different from general mental capacity. Specifically, it means that the person making the will, i.e., the testator, understood the following: 

  • The fact that the document he or she signed was his or her Last Will and Testament 
  • The nature of the assets he or she owned and their approximate value 
  • The names of his or her immediate family members who made up his or her presumed heirs 
  • The things he or she bequeathed to each heir, including their types and approximate values 
  • How the various bequests would impact his or her other family members 

Keep in mind that whichever theory you use to challenge your loved one’s will, you will need to present clear and convincing evidence of it to the court in order to prevail. 

William G. Peterson
FindLaw