About 90% of all wills go through probate with no issues, but there are times when it’s appropriate to challenge a will. This is generally when something seems to have gone very wrong in the creation of the will, not simply because a beneficiary disagrees with what was done in the will.
A will is the final words of the testator, or the person who wrote it. Courts are extremely hesitant to ignore or overrule the words of a person who is no longer there to explain their position. If a will is valid, it’s not in anyone’s interest to try to have it invalidated.
That said, there are situations where a person has been pressured into leaving their property to someone, or where the testator was not competent when the will was created.
Simple issues that can make a will invalid
In order to be valid, a will generally has to be written by a competent person who was not under the influence of duress or fraud. It must be in writing, it must be signed, it must have sufficient witnesses (two in Tennessee) who are not also beneficiaries, and it must meet other requirements that vary by home state. Only the person’s last will can be probated.
Lack of testamentary capacity
One of the major issues with wills is that people wait too long to write them. If your loved one waited until late in life or near death to write their will, it is possible they lacked legal capacity to write it.
Adults over 18 are presumed to have capacity to write a will, so a challenger will need to bring sufficient evidence to convince the court that they did not. This could be evidence of a diagnosable illness such as dementia or Alzheimer’s disease, or proof that the person was too mentally ill or addicted to substances to fully understand what they were doing.
Wrongdoing by others
A will can also be challenged if there was fraud, forgery or undue influence. Was the testator being lied to about substantial issues? Were they being manipulated? Did someone change the will to improve their situation?
The most common of these is probably undue influence. This is often a situation where someone comes along late in the testator’s life and makes his or herself seem indispensable. In reality, they may have been manipulating your loved one to the point where they lacked any realistic bargaining power.
If your family is suspicious of the circumstances under which a will was written, you should share your concerns with an attorney who handles probate litigation. Under the right circumstances, it’s possible to successfully challenge a will.
