If you watch enough drama-based television shows, you’re likely to come across a scene where family members are gathered to hear the reading of a loved one’s will after his or her death. Once finished, an heir stands up and starts shouting how he or she has been treated unfairly and plans to contest the will.

This occurs not only on TV or in the movies. It also happens in real life. Indeed, regardless of how harmonious your family may be during your life, there’s always a chance that a disgruntled family member may challenge your estate plan after your death.

Contesting a will

Your last will and testament, if properly executed, is a road map for an executor to follow. Notably, it includes a legally enforceable mandate as to the distribution of your assets to named beneficiaries. Some bequests are specific, while others may be covered by the residuary clause.

The contest to a will is made in probate court by an “interested party.” To contest a will in any state, the person must have legal standing. This ability generally is restricted to beneficiaries named in the will, those who were named as beneficiaries in a prior will that have been cut out or that are receiving a reduced inheritance, and anyone else eligible under the state’s intestacy laws. Typically, this means a spouse, child or other lineal descendant.

Beneficiaries can’t contest a will until they’ve reached the age of majority in the state (age 18 in most states). However, a parent or guardian can initiate legal action on a younger beneficiary’s behalf.

Understanding why wills are contested

There are several reasons for contesting a will:

Violation of state law. Each state has specific laws governing the wills of its residents. Generally, you must sign the will in the presence of at least two witnesses. All three people must be in the room watching each other sign the document. Depending on state law, other technicalities may have to be observed. Don’t assume that the will is legally binding just because it was signed in your attorney’s office.

Lack of competency. Did the testator (the person who made the will) have the capacity to understand the terms of the signed will? This is another aspect that’s governed by state law. It’s typically difficult to prove to the court that a testator lacked the requisite mental competency.

Undue influence. As people get older, they may be more susceptible to being influenced by others, sometimes resulting in revisions or even a complete rewrite of a will. The main issue is whether enough pressure was exerted on the testator to cause a loss of free will. For example, this may occur when the influencer isolates the testator from other family members and friends. Note that mere threats, nagging and verbal abuse usually aren’t sufficient to uphold a challenge. As with a lack of capacity, this charge generally is difficult to prove under state law.

Fraud. Someone contesting a will may claim that the testator was duped into signing it. Let’s say that the testator signs a different document, such as a living will relating to end-of-life decisions, and thinks that it’s a last will and testament. This type of challenge often relates to mental competency. The testimony of witnesses can be significant in these cases.

A subsequent will. Did the executor probate the latest version of the will? A subsequent will revokes other versions. It’s only the last one that counts as long as it meets state requirements. Frequently, a testator modifies or rewrites a will without notifying all the interested parties, leading to a challenge in court.

Taking proactive protection steps

Be proactive about protecting your estate from will contests. Start by observing all the legal technicalities in your state. Discuss the terms of your will and the reasons for your decisions with your loved ones so they won’t be caught by surprise.

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Disclaimer: The THK Legal Blog is for informational purposes only and should not be relied upon as legal advice. In no case does the published material constitute an exhaustive legal study, and applicability to a particular situation depends upon an investigation of specific facts. You should consult an attorney for advice regarding your individual situation. All THK blogs are considered advertising material by the Indiana Bar Association.