Part 2 – The Probate Process: Ways to Contest a Will

Posted by Michael E. Lyons | Oct 30, 2019 | 0 Comments

Editor's Note: This is Part 2 of our series on the Probate Process. To learn more, start with Part 1: The Will

In “Part 1: The Will,” we explained the purpose of a will and how a will is executed. In the second part of this series, we will highlight a few ways to contest a will. If a will is successfully challenged, then the entire will or parts of it may no longer be valid.  If that happens, property will pass according to intestacy laws which, as we said in Part 1, favors spouses and heirs.

Who can contest a will?

Not just anyone can contest a will. In order to challenge a will, the challenger must have some kind of interest in the estate or be a beneficiary of the estate. For example, someone who may inherit more through intestate succession, when there is no will, than he or she does under the will may want to challenge the validity of the will. Most interests involve some sort of economic benefit, such as money or property.

Some wills may also contain clauses that can limit inheritance for those who choose to contest a will. Each state varies on the way it enforces (or does not enforce) those clauses, commonly called no-contest clauses or in terrorem clauses.

In Maryland, for example, if there is probable cause to challenge a will, a no-contest clause will not be enforced. In Virginia, no-contest clauses are generally enforceable, but they are strictly construed, meaning that the specific language of each clause is important and can determine whether and to what extent the clause is enforced. The language of the clause can even determine what constitutes a will contest. No-contest clauses are also usually enforceable in the District of Columbia. If enforceable, these clauses are an important consideration for anyone deciding whether or not to contest a will. Patriots Law Group can help you determine whether you can contest a will, what constitutes a contest, and the possible implications of going forward with the contest.

Contesting the execution of a will

One way to contest the validity of a will is to challenge its execution. If a challenger succeeds in proving that the will was not validly executed, the entire will may be declared invalid and the testator's estate would be distributed according to the applicable state's intestacy laws.

There are a variety of ways to challenge the execution of a will:

  • Lack of witness presence at signing. In states that require the witnesses and testator to sign the will in the presence of one another, a challenger may claim that a witness was not present when the testator signed.
  • Lack of legal testator signature. A challenger may also claim that the testator did not actually sign the will nor direct someone to sign on his or her behalf.
  • Incorrect number of witnesses. A challenger may also argue that not enough witnesses signed the will as is required by the state's law.
  • Bias of witnesses. A challenger could claim that some of the witnesses are estate beneficiaries, and thus cannot serve as witnesses depending on state law.

It is often difficult to contest a will based on some matter related to its execution. Most states have mechanisms in place that will still admit the will for probate as long as there is clear and convincing evidence that the testator intended the document to be his or her will. Therefore, it is important to consult with an attorney before executing your will.

Contesting the testator's mind

A beneficiary may also challenge a will by proving that the testator did not have the proper testamentary capacity when he or she executed the will. In other words, a beneficiary may argue that the testator was not in their right mind when they created the will.

If successful, the entire will can be declared invalid. However, if the person supporting the will's probate is able to prove that the testator had testamentary capacity when the will was executed, which is the key moment, that may be a successful defense. The idea there is that although a testator may not have testamentary capacity at all times, he or she had it when executing the will.

The challenger may also contest the will by proving that the testator was either delusional or under undue influence when he or she executed the will. Delusion, when someone acts or thinks in a way that goes against reality, usually occurs because of things like mental illness, degenerative diseases, or other psychoses associated with old age or sickness. Undue influence usually occurs when there is a close relationship between the testator and a third party, which allows the third party to influence the testator into changing his or her estate distribution in a way that favors the third party and disfavors the challenger.

If the challenger is successful in proving either delusion or undue influence, usually only the part of the will that is affected by the delusion or undue influence is declared invalid for probate purposes.

Contesting based on fraud

Lastly, a will, or parts of it, may also be denied probate if fraud was involved. Fraud includes both fraudulent statements and fraudulent acts. A fraudulent statement is an intentional misrepresentation of a material fact that the testator detrimentally relies on. In most cases, the person making the statement must intend to deceive the testator in order to constitute fraud. A fraudulent act may consist of preventing the testator from changing his or her will or executing a new will.

Contesting a will can be a complicated process that varies greatly based on the details of each case. Let Patriots Law Group help you with those complications by calling 301-952-9000 today!

DISCLAIMER:  The information above is for informational purposes only and is not intended to serve as legal advice for any particular situation.  No attorney-client relationship is intended or created by this information and may not be relied upon based on the above-statements.  Each individual situation is different and therefore a consultation is necessary before any advice can be relied upon as appropriate and accurate for your situation. Please call Patriots Law Group at 301-952-9000 to set up a consultation if you wish to obtain specific legal advice concerning your situation.

About the Author

Michael E. Lyons

“As a veteran, I bring my core values of service, integrity, and excellence to every client, every case, every time.” Background: Michael E. Lyons (“Mike”) handles cases in Maryland and Washington D.C. fr...


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