How do you successfully challenge someone’s will?
September 27, 2021
When you decide to challenge the validity of someone’s will, you fight an uphill battle. Per FindLaw, 99% of all wills make it through probate intact, with any challenges found inadequate to overturn them.
The main thing you need to remember about challenging a will is that you need one or more valid legal reasons to overturn it. Your disappointment or anger over not inheriting the amount you think you should have received will not suffice.
Valid legal reasons to challenge a will
Most successful will challenges occur because the challenger proved one or more of the following by clear and convincing evidence:
- That the testator, i.e., the person making the will, did not have sufficient testamentary capacity to make the will
- That someone unduly influenced him or her to make the will
- That he or she made the will as a result of fraud or duress
- That fatal technical flaws, such as improper signing or witnessing, invalidate the will
- That the testator made another will that supersedes the challenged will
If the testator who made the will you wish to challenge was elderly or ill at the time he or she made it, challenging his or her testamentary capacity may be your best chance of overturning it. However, keep in mind that testamentary capacity is different than general mental capacity. Testamentary capacity applies only to the circumstances surrounding will itself, not other aspects of the testator’s life.
In addition, keep in mind that, win or lose, challenging someone’s will on any ground whatsoever could tear your family apart, producing hard feelings that could last for generations.