CONTESTING A WILL

Often times, people are displeased by the terms of a family member’s will and would like to have a court set aside the will. This frequently occurs when relatives are left out of a will, and there is concern that the will does not reflect the actual wishes of the decedent. Based on the circumstances in which a will is created or the consistency of a will under applicable state law, some wills may be invalidated. According to Julie Garber’s recent article, “What Are the Grounds for Contesting a Will?” there are four legal grounds on which a party may contest the validity of a will: (1) non-compliance with signing formalities, (2) lack of testamentary capacity, (3) undue influence, and (4) fraud.

The first legal ground on which a will may be contested depends on whether the will was signed in accordance with the governing state law. Every state has its own law with regard to the formalities that must be followed when a will is executed. In Florida, a testator must sign their will in the presence and hearing of two witnesses. That is, the two witnesses must be in the same room as the testator and at the same time as the testator. The testator and each of the witnesses must take turns signing the will while the others watch. Not abiding by signing formalities is the most common reason that a will is invalidated.

A will may also be invalidated if a court determines that the testator lacked testamentary capacity at the time the will was signed. To determine whether the testator signed their will with testamentary capacity, the court will consider whether the testator understood “(1) the nature and value of his or her ‘bounty’ (assets); (2) the natural objects of that bounty (who should logically inherit the assets); and (3) the legal effect of signing a will.” As with signing formalities, each state uses its own standard to determine whether the testator lacked testamentary capacity. Generally, it is difficult to prove that a testator did not have the testamentary capacity to sign their will. For example, in Florida, even signs of dementia do not prevent a court from finding that a testator possessed the requisite testamentary capacity.

A third ground on which a will may be contested depends on whether the testator was unduly influenced in creating and executing the will. Here, the court looks to see whether the person unduly influencing the testator exerted such “severe duress. . . as to cause the Testator to lose free will and instead succumb to the will of the alleged undue influencer. ..[.]” In order to meet this standard, more than verbal abuse must have influenced the testator, and the testator must be shown to have been overcome by the will of the person committing the undue influence so that the disposition of property set forth in the will is the product of the undue influence, rather than the desires of the testator.

The fourth and final ground upon which a will may be contested is fraud. That is, was the testator tricked into signing the will? The greatest obstacle to proving fraud is the death of the testator. Without the testator there to attest to what they signed, it is difficult to prove that the testator was a victim of fraud. Witnesses need to be questioned and, based on their testimony, the court then determines whether the will was procured by fraud.

If you or someone you know fear that family members will challenge a will and wish to make sure that it is not vulnerable to potential challenges, or if you or someone you know would like to challenge a will that you believe was the product of undue influence or fraud, please do not hesitate to contact the experienced estate planning and probate litigation attorneys at Chepenik Trushin LLP for an initial consultation.