Who Can Challenge a Will?
Wills are rarely challenged in South Portland, Maine. According to one estimate, majority of wills (99%) undergo probate without incident. However, when a will fails to meet certain requirements of the law, or the will-maker wasn’t of sound mind or not of age, anyone who has much to gain from having the will invalidated may go to probate court and challenge it after the death of the will-maker.
If you want to discuss who can challenge a will and on what grounds, you should consult with a Maine estate planning attorney. Our Maine estate planning attorney at Jackson & MacNichol would be pleased to meet with you at your convenience. Give us a call now to set up an appointment!
Who Can Challenge a Will in Probate Court?
You cannot simply show up in probate court and contest every will that passes through their doors. To dispute the will, you need to have legal standing, which means you need to be an interested party. This usually means one of these circumstances:
- If there had not been any will, you would have been considered an heir by intestate succession laws.
- You have been a beneficiary under a prior will (created prior to the will that is under consideration) or a subsequent will (created after the will that is under consideration), or
- You’re a beneficiary under the existing will that has been filed for probate.
Example 1: you could contest the existing will if you received $20,000 under an earlier will as well as $5,000 under the existing will that was filed for probate.
Example 2: you can dispute the will if you aren’t a beneficiary mentioned in the will but are the deceased’s child and would receive assets under intestate succession laws (which would apply if there is no will).
However, merely having the right to challenge a will is not enough unless there is a solid ground for challenging the will. The section that follows describes the usual grounds for a will contest.
Grounds for Challenging a Will
If you are wondering who can challenge a will, check out the common grounds for doing so below and see if any of them are applicable to your circumstances. The common grounds for challenging a will are as follows:
- was the maker of the will legally fit to create a will?
- does the document conform to the laws of the state?
- did a 3rd party illegally manipulate the maker of the will?
The Will Maker’s Age
This is seldom an issue. However the will-maker has to have been:
- 18 years old or above, or
- lives in one of the states that allow persons under the age of 18 to create a will as long as they are married, are in the military, or are otherwise “emancipated.”
Will Maker’s Mental State
The maker of the will had to be with “sound mind” at the time of the writing of the will. This isn’t a stringent requirement. Typically, a court confronted with deciding mental capacity needs just someone writing a will:
- understood the meaning of a will and what they were creating
- knew everything they owned,
- generally had a good idea of who would be inheriting property from them, whether it be their spouse or their child/ren.
For a court to declare a will invalid, the testator needs to have been in a state that is quite far gone. Incapacity is not established by forgetfulness or the lack of ability to recognize close friends. If the maker of the will understands the aforementioned factors while creating the will, the will is usually considered valid.
Undue Influence or Fraud
A will may also be deemed invalid if the probate court finds it was obtained by forgery, fraud, or by “undue influence” which generally involves someone in a position of trust, such as an adult child or a caregiver, inducing a fragile person to give everything or majority of their assets to the one who is manipulating.
The Will’s Contents
What qualifies a will as valid? All states have their own set of rules for what the contents of a will should have, at a minimum. The majority of states require the document to:
- expressly declare that it is the author’s will
- have at least 1 substantive provision, like a clause transferring assets to someone or naming a personal guardian for their minor child,
- appoint an executor (also known as a “personal representative” in certain states) to carry out the will’s terms at a given time. Nonetheless, even if no executor is listed, the court is going to appoint one and subsequently enforce the will in most states.
Signatures and Witnesses (but Not Notarization)
A will needs to be signed, dated, and witnessed by at least 2 adults. For the majority of states, witnesses should not be those listed in the will to inherit property. (should a witness inherit, the gift given to the witness may be voided, but not the rest of the will.)
A holographic will (valid in around half of the states) is an exemption to the witness requirement. Holographic wills are considered valid even when there are no witnesses, although they have to be signed as well as written wholly or partly in the maker’s handwriting. (In some states, the will is required to be dated as well.) Holographic wills are easier to dispute compared to standard wills since there are no witnesses; the court needs to be convinced that the will is in the deceased’s handwriting and was meant to stand as a will.
Wills, to the astonishment of some, do not need notarization in order to be considered valid. There are some wills, though, that contain a self-proving affidavit (a sworn declaration of the witnesses) that are signed by the witnesses in the presence of a notary public. Providing a self-proving affidavit is optional, although it saves time when the will is presented to probate court.
The Process in the Challenge of a Will
A will can be contested after it has been presented for probate. However, there are deadlines, which are discussed below. Therefore, if you receive news that someone is starting the probate proceedings, you must act immediately should you want to challenge the will.
How Much Time is Given to Challenge a Will?
Once probate has begun, the appointed executor will complete the process and inform the beneficiaries listed in the will. This legal notification often limits the amount of time a beneficiary has to question the will’s validity. In general, a beneficiary (or even someone not mentioned in the will) has thirty to ninety days to file a legal challenge to the decedent’s will.
Is it Worth Contesting a Will?
It is difficult to win a will contest. And the fees in litigation are usually steep. Will contests also have a high emotional cost because they often lead to bitter fights between family members. That being said, if you believe your case is solid and you have a lot to gain, a probate attorney should definitely be consulted.
Keep an Eye Out for No-Contest Clauses
A no-contest clause, often known as an “in terrorem” clause, is included in some wills. This clause specifies that anybody who initiates a lawsuit disputing the validity of the will receives nothing from the estate. These clauses are sometimes upheld in court. Therefore, if the will in issue has a no-contest provision, proceed with utmost caution and seek legal advice.
How to Avoid a Will Contest?
If you’re writing a will and want to avoid having it contested by dissatisfied family members, you may take the following measures. Though nothing is guaranteed, the following measures can often help you strengthen your will in the face of challenges.
- Create a self-proving will (with a notarized affidavit)
- Add a no-contest clause,
- Avoid probate entirely by establishing a living trust instead.
If you wish to make a will and need help guaranteeing its validity or if you need assistance in creating a simple living trust, our estate planning attorneys at Jackson & MacNichol will be happy to help you.
Maine South Portland Estate Planning Attorneys
Who can challenge a will? In what conditions can you challenge a will? What are the steps for challenging a will?
Will contest laws in the entire United States are complex, and they may be particularly difficult to navigate during an emotional period, such as after the death of a loved one. Our will contest attorneys can go over your loved one’s will with you and discuss why you wish to invalidate the document. Our attorneys at Jackson & MacNichol will be able to give more insight into why the document at issue can or cannot be disputed after learning the circumstances of your case, as well as provide you with an estimate of how much it would cost to contest a will if money is a concern for you. Call us today to set up an appointment with one of our trust and will contest lawyers.
