Hyden, Miron & Foster, PLLC Law Blog

Monday, January 13, 2020

What Are Grounds for Contesting a Will?

Successfully challenging the validity of a will is usually very difficult. The testator, the deceased person who created the will, is no longer around to communicate his or her wishes. This makes the court more inclined to adhere to a will and the terms contained therein. However, a will may be contested by anyone who is the beneficiary of the will or would be a beneficiary under the state’s intestacy laws.

Intestacy laws apply when a person dies without a valid will in place. These laws direct distribution of the decedent’s estate based on levels of familial relationships. If a person contests the validity of a will, the challenge may be unsuccessful and the will stands as is. If it contested and deemed void, the court will distribute the estate according to the state’s intestacy laws, as if no will ever existed. In some cases, only part of the will, such as a particular provision, will be deemed void while the rest of the will still stands as valid.

When Should You Contest a Will?

The several key grounds that form the basis for contesting a will. For instance, a will may be contested based on it lacking the formalities required of a valid will’s execution. If a will was not executed in accordance with the applicable state laws, it may be deemed invalid. In Arkansas, a will must be in writing. It must also be signed by the testator and by two witnesses.

Each of the witnesses must see the testator sign the will or be informed by the testator that the signature on the document is his or hers and must sign the will in the presence of the testator and the other witnesses. Additionally, each witness must be 18 years of age or older and competent. It is also recommended that the witnesses be disinterested. A disinterested witness is one that does not stand to benefit from the will.

A will may also be challenged due to lack of testamentary capacity. A testator is required to have legal capacity to create a valid will. There is a presumption that adults have testamentary capacity. This means that in a challenge to a will based on lack of capacity, the party challenging the will must provide proof that the testator lacked the requisite capacity to create a valid will. Usually, this is done with proof that the testator had a medical condition such as dementia or Alzheimer’s disease. The will challenger must show that the testator did not have the mental capacity to understand the consequences of the will at the time of its creation. The testator, to have testamentary capacity, must understand the extent of his or her property. He or she must also understand who he or she is providing for in the will. The testator must also understand what the distribution as laid out in the will means. Without an understanding of the contents of the estate or the listed beneficiaries, the testator will be considered to have lacked testamentary capacity.

A will could also be challenged based on something such as fraud or undue influence. A will created based on a fraudulent act may have come to be by something like the testator being tricked into signing the will because he or she thought she was signing something else like a power of attorney or another legal document. A will procured through undue influence means that someone manipulated the testator in such an aggressive way that it caused him or her to lose his free will and have his or her will substituted for the individual exerting the undue influence.

Estate Planning Attorneys

Challenges to a will’s validity can get messy very fast. There are certain steps you can take during the estate planning process to help ensure that a will is valid and can withstand any challenges that may arise later on. The trusted estate planning attorneys at Hyden, Miron & Foster, PLLC, create comprehensive estate plans that comply with all of the requisite formalities established by Arkansas law. Contact us today.


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