When And Why A Will Can Be Challenged: Part I

| Aug 5, 2020 | Probate Litigation |

When estates become the subject of litigation, disputed (or contested) wills are frequently the issue at hand. Courts generally want to honor wills, as they are likely the best record of a decedent’s wishes about what happens to his or her property. Moreover, the decedent obviously cannot be there to clarify questions, which is another reason why courts are reluctant to hear challenges to a will – unless there is a compelling reason to do so.

There are numerous instances in which a will can be contested, some of which are more compelling than others. We’ll discuss those reasons in this post and our next post.

Challenging on Procedural Grounds

Wills are sometimes challenged because they may not meet the legal requirements of the state in which they were created. For instance:

Invalid or inadequate witnesses: Most states require witnesses to attest to the signing of the will by the testator (the will’s creator). Here in Texas, wills must be signed by two witnesses above the age of 14 and considered credible. They must also sign in the presence of the testator. In order to bolster legitimacy, it is a good idea to choose witnesses who are not named as heirs or beneficiaries in the will.

Having only one witness or no witnesses may be grounds for challenging the validity of a will.

Will is missing required provisions: A standard will often contains numerous provisions, some of which are required by state law (depending on where you live). For instance, it may be necessary to name an executor in the will, to leave at least one piece of property to a specific heir, or to explicitly state in writing that the document is the testator’s will.  These are easy requirements to meet in most cases.

Challenging Based on the Existence of Other Wills

When someone creates and signs a will, that will is considered the authoritative one until or unless the testator later changes it or completely rewrites it. By default, the will created most recently is presumed to be the correct one, unless there are reasons to suspect that an earlier version reflected the true intentions of the testator. We’ll discuss this further in our next post.