How Do I Challenge My Father’s Will?

Get a lawyer right away before it’s too late!

The need to challenge a will happens all the time, but most often in a second marriage. Your parent or spouse dies and you don’t like the way the will is written. Sometimes someone is disinherited or someone will inherit more than you think they should. The reasons the will may be challenged are vast and varied. I will try to explain a few basic procedures you will probably need to address and the most common legal challenges to a will. But first you need a lawyer!

Statute of Limitations Limits the Time to Challenge a Will. In most court proceedings, including a probate proceeding that determines if a will is valid, there are time limits to exercise your rights. There is probably a time limit in your state to when you can probate a will at all. In many states that have adopted a form of the Uniform Probate Code, a will must be probated within 3 years of death. But if the will is offered for probate, particularly in something called a “formal probate”, there are additional time limitations to challenge the will. The time may be VERY SHORT so GET A LAWYER, IMMEDIATELY. The biggest problem with challenging a will is that if the will was offered for probate and the court orders the will to be probated formally by court order, you might have lost the ability to challenge the will at all because once a will is deemed valid by court order and the time to appeal the order has passed, it is very hard and often impossible to change that order. So waiting too long to challenge the will can prevent any challenge even if the will could have been subject to a valid challenge. There are other time limits if a will is probated “informally” and there are limits to claims after notice of probate has been given and published under various state laws. The rules to when you can challenge a will vary from state to state, so if you want to challenge a will, get a lawyer immediately and take action immediately.

Legal Arguments to Challenge a Will. There are many legal arguments to challenge a will, but I will review some of the most common arguments.

Improper execution.  Sometimes a will is improperly signed and is therefore invalid. Many states require that a will be signed by the testator and that the signature be witnessed by at least 2 witnesses. If the will is not signed by the testator or is not signed by two witnesses, sometimes that can result in the will being declared invalid. Each state has its own rules regarding proper execution of a will. A state might require that the will be signed in the presence of two witnesses who watch the testator sign first. Other states can allow the testator to sign and then allow the witnesses to sign later as long as the testator affirms the signature or the will. Many states have something called a “self-proving affidavit” which is an affidavit attached to the will or that is part of the will which states under oath that the will is validly signed. If a will has a self-proving affidavit that makes it much harder to prove the will was improperly signed because under some state statutes the affidavit conclusively proves the will was properly signed. In some rare circumstances, a will can even be signed by a witness after a testator dies. In some states, a hand written will (called a holographic will) can be valid even if it is not signed by witnesses. So challenging a will based upon the legal argument that it was improperly executed will require a factual investigation and a thorough knowledge of state law where the decedent died or the law of the state where the will was signed.

Undue Influence. Many wills are challenged by arguing that the will is the product of undue influence. Undue influence is essentially the argument that the will is the result of coercion. The argument is that someone unduly influenced the testator to sign a will that expresses the intent of the person exercising the influence. For example, let’s say mom has advancing dementia and lives with her daughter. The daughter unduly influences mom to sign a will that gives everything to daughter and nothing to mom’s other 3 children. If mom did not have dementia and was healthy she would never disinherit her children. The disinherited children will argue the will is invalid due to undue influence. In many states the elements to prove undue influence are similar. You have to prove (1) that the sister had the opportunity to exercise undue influence, (2) that mom was susceptible to undue influence, and (3) that the will is the product of the undue influence. Other factors include (4) the daughter was a material participant in the preparation of the will, (5) the distribution of the estate is an “unnatural distribution”, and (6) the daughter was in a fiduciary relationship with mom. There are other factors and indicators of undue influence but these are the elements most often cited in one form or another. So in a case like this, the daughter had the opportunity to exercise undue influence and because of the dementia, mom was susceptible to the influence. We don’t know if daughter was a material participant in creating the will. The will does seem to be unnatural in that it disinherits the other three children. Whether mom and daughter were in a fiduciary relationship is not clear (such as being an agent under a power of attorney for mom). But if these things can be proven the will might be deemed invalid.

Lack of Capacity. Some wills are declared invalid because the testator lacked capacity or did not have the mental ability to sign a will. The general elements to prove lack of capacity include: Did the testator have the ability to know (1) the nature and extent of their assets, (2) the natural objects of their bounty (usually who their spouse and children or next of kin may be), (3) what the testamentary plan is (am I giving it to my spouse, to kids, to charity) if they sign the will, and (4) hold these elements in their head long enough to sign a will. In general, the capacity to sign a will is very low. In fact, in many states, persons under guardianship might be able to still sign a will. In other words, just because you are placed under guardianship does not mean, in many states, that you can’t sign a will. The person under guardianship might lack capacity to sign a will and be under guardianship, but guardianship does not necessarily mean that you can’t sign a will in many states. In the case noted above, mom may have dementia, but she may still know, or have the ability to know, the extent of her assets, how many kids she has, that she is disinheriting three kids, and know that long enough to sign the will even if she will forget signing the will in an hour. Proving a will is invalid for lack of capacity is usually one of the harder cases to prove, but sometimes it is quite self-evident.

Fraud – Mistake. Some less common attacks on the will include fraud and mistake. Fraud takes place when the testator is tricked into signing what they know to be a will but they sign due to fraudulent reasons (e.g., they are told it is a crime if they don’t sign the will, often called fraud in the inducement). Fraud can also be in the execution. For example, the person is told to sign a document but they do not know they are signing a will. Fraud is also sometimes plead as a mistake. The will is signed for mistaken reasons.

Tortious Interference with Inheritance. The claim of tortious interference with inheritance is actually not a claim against the will. It is a claim against the person who interferes with your perceived right to inheritance. Not all states recognize this cause of action. Some states acknowledge the claim by case law and other states have statutes. I will blog further on this topic later. But the Anna Nicole Smith case before the Supreme Court addressed the issue not as a probate matter but as a matter between two individuals. But some courts may require that a challenge to the will to take place before this remedy can be pursued.


About Robert McLeod

I can help you fight a will, fight a power of attorney, will contest, fight a guardianship, fight a conservatorship, create or revoke powers of attorney, wills or revocable trusts. What is probate? I can answer that for you. I can help you with all your probate needs.
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