A will is a legal instrument that is used to provide instructions on how to distribute the property and assets of an estate after the estate owner dies. This at least is the purpose of creating a will, but there are some situations that may give rise to a dispute over the will or how its contents are distributed that can lead to a legal action in court.
A will may be contested in probate court through a procedure known as a “will contest”. A will contest, or a “contested will”, is a formal legal action brought by an interested party that challenges the validity of a will. An “interested party” refers to a party who has standing to contest the will. Parties who have standing to contest a will are typically limited to:
- Any beneficiaries named in the will; and
- Persons who are not named in the will, but would normally inherit under a state’s intestate succession laws.
The premise of most of these claims are based on two key arguments: either that the terms of the will do not reflect the testator’s actual intentions or that the will document itself is invalid. Regardless of which argument is being asserted, will contests can be difficult to prove since they require strong supporting evidence. Also, courts generally do not like to interfere with a deceased individual’s final wishes.
Therefore, if you are not sure whether you have standing or a valid reason to contest a will, you may want to speak to a local estate attorney for further advice before filing a claim.
Who is Responsible for Defending a Contested Will?
In general, the executor of a will is the person who is typically responsible for defending a contested will. The executor of a will is an individual who is appointed by the testator (i.e., the person who created the will) to oversee will-related affairs after they are deceased.
Will executors have specific duties to a deceased testator’s estate, such as making sure that all debts are paid off and that any remaining estate property and/or assets are distributed in accordance with the testator’s last wishes.
Another important obligation that a will executor has to an estate is to defend the will against any legal challenges that arise. This means that the will executor will need to handle the legal tasks associated with defending a will contest, including retaining counsel, appearing in probate court, locating witnesses, and maintaining records of court filing submissions.
Is Contesting a Will the Same as Trying to Remove Me as an Executor?
A will contest is different from the legal action that one must take to remove an executor of a will. An individual (usually a beneficiary) who wishes to remove and replace an executor of a will can do so by filing a petition for removal with the probate court.
Some common legal reasons that may support removal of a will executor include:
- Lack of mental competency;
- Incapacitated or deceased;
- Commission of prior or current felonies;
- Neglected fiduciary duties (e.g., failed to follow accounting procedures);
- Stole from the estate or wasted estate assets; and/or
- Refusal to obey court orders.
It should be noted, however, that courts are typically reluctant to remove an executor of a will unless there is a valid reason for their removal. This means that the person petitioning for removal will need to be able to prove why an executor should be replaced with sufficient evidence.
If a petitioner is successful and the court grants the request for removal, then this means that the executor will no longer be allowed to manage the estate or any estate-related matters, including defending against will contests.
What Are the Common Reasons a Will Is Contested?
Will contest claims are very specific legal challenges. They are strictly limited to determining whether a will is valid (e.g., was it formed properly?) and whether the will reflects the actual intentions of the testator. Thus, just because someone is unhappy with the property or assets that were (or were not) bequeathed to them, does not mean they will have grounds to challenge a will.
Some common legal reasons that may support a proper will contest include:
- If the testator lacked mental capacity at the time they created the will;
- If an interested party coerced, manipulated, or pressured the testator to draft the will or to include them in the will;
- If an individual with certain duties to the testator abused their confidential relationship (e.g., a lawyer, an accountant, a priest, etc.);
- If the will was not signed by two witnesses or the witnesses were not present to watch when the testator signed the will;
- If the will was never signed by the testator;
- If the will was forged or fraud was involved in its creation; and/or
- If there is a more recent copy of the will than the one being used for probate.
What Is Needed to Prove the Will Is Valid?
There are a number of factors that must be met in order to prove that a will is valid. First, the will must be in writing. This can either mean that it was handwritten by the testator or drafted and printed out from a computer. One challenge that can be difficult to overcome under this first factor is if the will is written using a combination of typed and handwritten language.
Second, the will must be signed and dated by the testator. Since more and more wills are being created through electronic forms, there is also now an option to include an electronic signature. Testators should review the laws of their state before using an electronic signature, however, because not every state permits electronic signatures for wills yet.
Finally, the third and most important factor is that the testator must sign the will in front of two witnesses and those witnesses must then sign the will themselves. The witnesses chosen must meet certain state requirements, such as that they are of age (usually 18 years old) and that they are mentally competent.
These are just some of the technical aspects of drafting a valid will. There are also some other requirements like the testator must be mentally competent and must not be coerced or unduly influenced to create the will.
Ways to Defend a Contested Will
The exact methods that an executor of a will can use to defend against a contested will, will largely depend on the facts of an individual claim. Some common ways that a will executor might be able to defend a contested will include:
- Submitting handwritten letters, notes, or electronic documents that express the testator’s wishes and were composed by the testator;
- Having the two witnesses who signed the will provide testimony; and/or
- Hiring an expert witness, such as a doctor to testify that the testator was mentally competent.
Basically, anything that will support that the will is valid and that the testator’s actual intentions are expressed in the will document.
Should I Contact an Attorney about Defending a Contested Will?
If you are the executor of a will and need assistance in defending against a will that is being contested, then it may be in your best interest to contact a local probate lawyers for further guidance.
An experienced estate attorney can inform you of your rights and responsibilities as a will executor, can help you prepare a strategy to defend the challenges brought against the will, and can provide representation during any proceedings in probate court.
