Challenging a Will: Everything You Need to Know

Legal matters can make the death of a loved one even worse. Challenging a will is an obstacle worth preparing for.
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Staff Writer, @DooleyNotedLaw

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Challenging a will can happen for a variety of reasons. Someone who believes they should have been a beneficiary might contest a will. However, you may want to protect your loved one’s wishes to ensure you carry out their will according to their plan. Either way, contesting a will or preventing a will from being challenged is a big undertaking, so we want to prepare you with everything you need to know.

This article will discuss what it means to contest a will, the common reasons why people challenge a will, and the rules for contesting a will.

What Does it Mean to Challenge a Will 

Challenging a will means that you are contesting the validity of the will. This process requires issuing a formal lawsuit against the deceased individual’s will. Additionally, it requires taking the issue to court for a judge to decide the validity of a will.

To contest a will, you must have grounds to do so. Perhaps you believe the person who made the will (the “testator”) was not of sound mind when they created the will. However, there are other reasons why someone may challenge a will.

How to Challenge a Will in Court

While only one will in every one hundred is challenged in court, a potential beneficiary might contest the will if the will-maker doesn’t fulfill specific legal requirements.

Below the article discusses four of the ways to challenge a will in court.

Mental Capacity 

First, for your will to be valid, you must have been of “sound mind” when you made the will. “Sound mind” requires understanding the nature of what you are doing and the consequences of your actions. If someone can show that you did not have this understanding, then your will may be contestable.

A court will typically inquire into the mental capacity of the testator by asking whether they understood they were creating a will, as well as specific information like:

  • the general purpose of a will,
  • who close family members were, and
  • what the will-maker owned.

Additionally, the court will look back at the testator’s mental capacity at the time t This means, if the will-maker drafted the will during a period of clarity and sound-mindedness, the will is typically valid.

Undue Influence

Second, the court can declare a will invalid if you prove it was obtained by “undue influence,” which involves someone in a position of trust, manipulating the will-maker to leave behind their property to the manipulator instead of to those expected to receive it. This person might include a caregiver or an adult child.

In other words, this action creates a will that accomplishes the manipulator’s goals rather than the will-maker’s wishes.

The person contesting the will must show that there was an opportunity for undue influence when the testator created the will and that the beneficiary took advantage of that opportunity.

Fraud or Forgery

Thirdly, you can contest a will based on fraud or forgery. For example, you may argue that someone tricked the will-maker into signing a document or that someone forged the signature.

Typically, these claims will go along with allegations of the will-maker lacking mental capacity or signing a will under undue influence. Fraud or forgery can occur while drafting the original will or making changes to the will. 

Legal Requirements 

Finally, every state has laws for what is considered a legal will, and it’s crucial to understand each state’s laws.

Signatures, dates, and witnesses are also significant components in determining the validity of a will. Often, a will must be dated and signed in the presence of at least two adult witnesses, and these witnesses must also sign the will. In most states, a witness cannot include those named to inherit any property in the same will.

Some states require all will and estate planning documents to be notarized for the papers to be considered valid in court.

Rules for Challenging a Will

Specific rules come into play when you plan to contest a will. Most importantly, the challenger must understand the statute of limitations. Each state has its own statute of limitations laws regarding estate planning and probate. 

In Texas, the statute is two years from the date the will goes to probate.

Additionally, the courts require more to contest a will legally, which is why we recommend consulting an estate planning lawyer before you proceed with anything. 

Why Hire an Estate Planning Lawyer

Although you create and challenge a will on your own, having an estate planning lawyer work on your behalf is always a good idea.

Dooley Noted can walk you through creating a will that fulfills necessary legal requirements. Working with an estate planning lawyer can avoid someone challenging a will in probate. Additionally, Dooley Noted can assist you if you need assistance challenging a will. 

Whether you need assistance with a will or estate planning before or after a loved one has passed, be sure to speak with an experienced estate planning attorney at Dooley Noted. 

We specialize in wills, trusts, and estate planning, and we would be happy to assist you with your estate planning needs. Schedule a free consultation with us today.

The contents of this post, and the posting and viewing of the information on this post, should not be construed as, and should not be relied upon for, legal advice in any particular circumstance or fact situation. An attorney should be contacted for advice on specific legal issues.

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