Contesting A Will

Signing Last Will and TestamentA will may be contested if one or more beneficiaries or potential beneficiaries feel they have been treated unfairly and the true wishes of the decedent have not been executed.

Generally, when a decedent chooses not to devise his/her property to a spouse, children, or other blood relatives, suspicion may arise. Also, when a will is altered shortly before death to provide everything to a newly chosen beneficiary, the will may be open to challenge. However, even in those circumstances, it is extremely difficult to successfully contest a will as courts are reluctant to interfere with the wishes of deceased individuals.

There are 4 basic grounds for contesting a will:

  1. The will was not signed in accordance with state laws:
    1. Each state has very specific laws governing how a last will and testament must be signed. There are statutory requirements for a valid will in New Hampshire, for example, the will must be in writing and signed by the testator before two or more credible witnesses. If those requirements are not met, a will may be successfully challenged.
  2. The testator lacked testamentary capacity to sign the will:
    1. If the testator was not mentally capable of understanding what was being signed, the will is not valid. Medical records may indicate whether the testator was able to comprehend the basic terms and conditions of the document. Additionally, witnesses present at the signing of the will may provide further evidence as to whether the testator had the necessary mental capacity.
  3. The testator was unduly influenced into signing the will:
    1. Did someone exert such extreme pressure and put the testator under severe duress so as to cause the testator to lose free will and instead succumb to the will of the alleged undue influencer? If so, a court will find that the will is invalid pursuant to undue influence exerted upon the testator. Nonetheless, undue influence is very difficult to prove.
  4. The will was procured by fraud:
    1. If the testator is tricked into signing a will that he or she believes to be another document, fraud has occurred and the will may be contested. However, because it may be unknown as to what the testator thought was being signed, it may be problematic to contest a will based on fraud.