estate planning and
probate attorney, I periodically get calls from people who want to contest the
validity of a will. In response, I explain under which circumstances a
will can be challenged.
While most wills are legally valid and not subject to challenge, that does
not mean that all wills are authentic, legally sound, and created with
the best intentions.
Below are the main legal grounds for contesting a
1. The will wasn’t drafted properly.
Each state has laws that clearly define how a will must be written and
signed. If a will is not written properly, it can be null and void. For
example, in Tennessee, a will must be signed in the presence of two or
more witnesses, who must also sign it. If your loved one wrote a will
and stored it in a safe or a safety deposit box, it may not be valid if
it wasn’t signed by witnesses.
2) The testator lacked mental capacity when they signed the will.
With the numbers of seniors suffering from Alzheimer’s and dementia,
this is an increasingly common complaint, a reason why I recommend drafting
an estate plan while you are still in possession of all of your mental
When you’re arguing that the testator lacked testamentary capacity
when they signed the will, you’re saying that he or she did not
fully understand the nature and value of their assets, nor did they understand
the legal effects of signing their will.
3) Testator was under “undue influence.”
As people age, they become physically and mentally vulnerable. When they
are in the hands of a son or daughter, a sibling, or a close friend, they
can succumb to undue influence. The caregiver may go so far as to physically
abuse the testator, pay the estate planning attorney to draw up the will,
and coerce the senior to sign the papers.
This may sound a bit dramatic, but it happens more often than people think.
When it comes time to distribute the decedent’s assets to the heirs,
they discover that a disproportionate amount is passed on to the caregiver,
giving rise to a will contest.
4) A fraudulent will.
Some unscrupulous people will go great lengths to gain access to someone’s
assets. When a will is created by fraud, it means that before the decedent
passed away, they were tricked into signing a will.
In such a situation, the decedent may have been so unaware of what they
were signing at the time that they were duped into believing they were
signing something less significant, such as medical insurance paperwork
or a power of attorney.
Since the testator isn’t around to speak, the witnesses must be found
and questioned. If the testimony is insufficient, the will may be declared
invalid because it wasn’t properly signed, not necessarily because of fraud.
Do you think you have a will contest on your hands? If so,
contact me, Derek A. Adame, Attorney at Law to schedule a free consultation.