Can Someone Challenge A Will?

One of the most common questions we get is: What happens when a family member “fights” the will?   

The best way to answer this is to answer a different question:

What are the valid challenges to a will?

For a will to be valid, it must comply with the state laws that govern the will.

A will is typically governed by the  laws of the state where the will is signed or the law of the state where it is subsequently submitted, if that’s a different state from where it was signed. For example, if a will was signed in New York, but the deceased later became a resident of Florida and died there, the will would be governed by Florida law.

The most common requirements for a valid will are:

  1. The person signing the will was in their full mental capacity and was not under duress or compelled by someone else to sign.
  2. The person actually signed the will (not forged signature). A will signed by someone other than the deceased may be valid if that person had a valid Power of Attorney.
  3. The required number of people witnessed and attested to the signing

Note: Some states require that a will be signed in front of a notary for it to be valid.

How to manage a challenge to the will

A few basic facts about the probate process may be helpful in understanding the possible impact of a challenge to the will.

First, a will only governs assets that pass through probate, and not all assets do. If an asset automatically transfers to someone else — such as a retirement account with a designated beneficiary — or if the asset is governed by special marital property laws — such as community property laws — those laws will supersede any wishes set out in a will.

See: What Assets Go Through Probate?

For example, if the will states that all the funds in the deceased’s retirement accounts should go to their nephew, but the designated beneficiary on the accounts is their ex-wife, the ex-wife is legally entitled to the funds in the retirement accounts.

Second, in most instances, anyone can be left out of a will and “disinherited” — including children. The possible exception is that some states have minimum inheritance laws for spouses regardless of the provisions of a will.

Third, proving that a person was not in their full capacity or that a will was forged is extremely difficult. Proving that the will wasn’t signed in accordance with the state laws — that it wasn’t notarized or that it wasn’t witness by enough people — may be a simpler task.

Regardless of the substance of a challenge, if someone contests the will, that action significantly increases the time and expense of the probate process. The court will schedule additional hearings, and the parties will enter into litigation.

If you are experiencing a challenge to a will, call us right away. We can help you plan next steps and determine whether hiring an attorney is appropriate.