This blog is intended for informational use only. The information contained herein should not be construed as offering legal advice or a legal opinion.
You can challenge a will if facts indicate that the will was not properly signed or was the result of fraud, mistake, or undue influence upon the person who made the will – referred to as the “decedent” after death.
Lack of Capacity
A valid will requires that the decedent possessed “testamentary capacity,” sometimes referred to as having a “sound mind,” at the time the will was made. Challenging a will on the grounds of a lack of capacity generally requires showing that the decedent did not understand the nature and extent of the property or other assets or the identity of natural heirs. Such a challenge will generally turn on medical evidence of mental impairment.
A challenge of undue influence means the decedent did not make the will of free choice, but solely due to the improper influence of another person. A common situation that leads to such a challenge is where an elderly parent has changed her will in favor of one sibling over another while under the sole care of the sibling providing her care.
Fraud or Mistake
A will can be challenged for fraud, such as when pages have been inserted after the decedent signed the will or the decedent’s signature is forged. If the will was not executed properly, with insufficient witness signatures, for example, the will can be challenged as invalid.
The Role of Probate Court
You challenge a will by filing an appropriate petition in the state probate court that has control over the decedent’s estate. The type of petition, the basis for the challenge, and the likely results depend on the state law where the court is located. Each state’s law has its own rules, which can differ greatly. These include the deadline for filing your challenge and whom you must notify regarding your challenge.
Disadvantage of Challenging a Will
Aside from being potentially consuming and expensive to litigate, challenging a will can also involve a risk of violating the “no-contest clause” that is typically found in a will. If your challenge fails and the will is valid it is possible that the no-contest clause may prevent you from receiving the inheritance left to you in the will.
The law surrounding challenges to a will is complicated. Plus, the facts of each case are unique. For more detailed information, please contact Attorney John Polgrean to better understand your Probate options and to arrange a free initial consultation.
Our offices are located in Nashua but we support all of Southern New Hampshire and Northern Massachusetts.