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 What Is A Will?

In short, a will is an estate planning tool allowing an individual to designate how their property will be distributed upon death. A person’s estate comprises real and personal property that may be distributed upon death. However, for a person to have a say in the exact way their property is to be distributed, they must execute a valid will.

Although the exact laws for creating a valid will differ by state, in general, for a will to be valid in most states, the will must meet each of the following requirements:

  • The will must be made in writing.
  • The will must be signed by the “testator” (i.e., the person making the will);
  • Although not generally a requirement, the will should also always be dated, as doing so can reduce any confusion that may arise regarding which is the most current will if there have been multiple drafted wills;
  • The testator must sign the will.
    • If the testator cannot properly sign the will, such as if they cannot use their hands, then laws typically allow that person to make a defining mark, such as an X.
    • Then, the witnesses who are signing the will at the time of execution can attest that the testator did sign it;
  • The will must also be witnessed by at least two or more competent witnesses who do not have an interest in the estate.
    • This means that the witnesses who signed the will at the time of the will’s execution cannot be named in the will or otherwise have a stake in the will; and
  • The testator must possess the proper testamentary capacity. A person is generally considered to possess testamentary capacity if they are above the age of majority in their state (generally 18 years of age or older), if they are in the military, or if they are legally married, and know:
    • That they are creating a will;
    • That the effect of the will is to distribute their estate property upon their death;
    • That they understand the specific property in which they are distributing; and
    • That they understand who is receiving the property being distributed.

Once again, the requirements mentioned above can vary depending on the state where the testator resides. As such, it is important to consult the local estate laws of the jurisdiction where the testator resides to ensure the will executed is valid.

Further, the laws concerning a will’s validity may also depend on the type of will being created. For example, if the will being created is a holographic will, then the will generally does not need to be witnessed, so long as the will is both written and signed by the testator.

If a person believes that the will that was created was not valid, such as by providing evidence that the testator did not meet one of the above requirements for making a valid will, then they may be able to void the will. An individual will typically want to contest and challenge a will when they feel they are being cheated out of their rightful inheritance.

As such, if a person believes that the distribution scheme in a will is unfair or not following what they believe to be the decedent’s actual wishes and intentions, they may seek to get the will declared invalid.

What Does It Mean To Contest A Will?

It is important to note an individual is assumed to possess testamentary capacity and to have created a valid will until proven otherwise. As such, the burden of proving that a will is not valid belongs to the person challenging the will’s validity. This means it is the challenger of the will’s responsibility to prove that the creator of the will failed to meet the requirements for executing a valid will, such as lacking the property mental capacity at the time of the will’s creation.

Once again, a will is a legal document with much authority regarding a person’s property, money, and other assets. As such, conflicts often arise regarding what a will means and the exact distribution scheme present in the will. Such conflicts are called will contests and generally involve the beneficiaries disputing over various terms of the will. To contest a will, the person seeking to contest the will may challenge the authority or validity of the will and its provisions.

Contesting a will generally results in a legal battle between named beneficiaries and individuals excluded from the will. Some of the most common examples of will contests include:

  • Disputes regarding which family member is entitled to what specific piece of property;
  • Disputes associated with the amount of money that is being distributed and to whom the property is being distributed;
  • Conflicts regarding specific personal property items, such as family heirlooms; and
  • Conflicts as to whether a person is actually entitled to receive an inheritance.

What Are Common Will Contests?

One of the most common legal contests is by a person excluded from their inheritance in the will, such as by not being named. Typically, all heirs would be entitled to a certain share of an estate through intestacy laws; however, a will bypass intestacy laws and instead distributes the property according to the will. If a person wishes to exclude a person from their inheritance in their will, it is best to name the party being excluded.

Additionally, unclear instructions for transfers of estate assets could also result in a will contest or various other legal problems. Adding codicils to an existing will may also open up legal disputes regarding the validity of the codicil and whether or not the original will should control the distribution of the estate assets. A codicil is a written amendment or alteration to an already existing will.

Importantly, a no-contest or anti-contest clause may be inserted into a will to prevent beneficiaries from contesting the will. A typically no-contest clause will state that the beneficiaries will forfeit any inheritance they have in the will should they contest the will in any way.

Who May Contest a Will?

As mentioned above, one of the most common people to contest a will is someone who would lose their inheritance under the will if the will was deemed invalid. Additionally, a named beneficiary will also be considered to have “standing” to contest a will. Standing refers to the legal capacity to contest the will.

Importantly, states may have their own individual laws regarding who has proper standing to contest a will. As such, it is important to check the local estate code in the jurisdiction in which the will was executed to determine whether the person challenging the will has proper standing.

How Is a Will Contested? How Can it be Avoided?

In general, contesting a will happens when the will is admitted into the Probate court after the testator has passed away. If a person wishes to contest a will, they must first have proper standing, as mentioned above. If the person has proper standing, they may typically begin the process of contesting a will by filing a lawsuit with the probate court in which the will is being probated.

Within the person’s lawsuit, they will typically submit various documents highlighting their reasons for contesting the will and the exact grounds for their contest. For example, the person may submit evidence that the person was coerced into creating the will by providing direct testimony or other evidence demonstrating undue influence was involved in the will’s creation.

Do I Need a Lawyer for Help With Contesting a Will?

As can be seen, there are numerous reasons why a will may be contested. As such, whether you are a beneficiary to a will being contested, or a person that has been excluded from a will that believes the will is invalid in some way, it is in your best interest to consult with an experienced will contest attorney.

An experienced probate lawyer can help you determine the correct process for contesting a will in your state, as well as help you determine if you have the proper standing to do so. Further, an experienced attorney can also represent you in probate court, as needed. Finally, if you are looking to draft a legally sound will and avoid having the will contested later on, an estate attorney can also assist you in drafting a valid and proper wil.


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