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What is a will Contest?

M. Lupica
M. Lupica

A will contest is a challenge by a person as to the validity of a bequest — the passing down of personal property through a will — or a devisement — the passing down of land through a will. Most commonly, a will contest is made by a close family member who is challenging the interpreted intent of the deceased to leave a particular piece of property to a person. There are many reasons a bequest or devise may be contested. For instance, the contesting party may suggest that the deceased did not have capacity to execute the will at the time it was signed. Other common reasons include fraud and coercion, also called “undue influence.”

In order to bring a will contest, the contesting party must have standing to do so — i.e., he or she must have something to gain personally if the legal remedy is granted. In the context of a will contest, a party generally has standing if he or she is named on the face of the will or will inherit from the deceased if the relief stemming from the contest is granted. If the contesting party has no standing the will contest will be dismissed immediately.

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Woman posing

Perhaps the most common reason for a will contest is that the deceased did not have the capacity to execute the will at the time that he or she did so. In order to have capacity, the deceased generally must have been at the age of majority and have enough mental awareness to understand and appreciate the consequences of his or her actions. For example, the contesting party may challenge a will executed just prior to the death of the deceased on the grounds that due to the sickness that eventually resulted in his or her death, the deceased did not have enough awareness to properly execute the will. If the deceased was heavily medicated at the time of execution, that alone may be grounds for deeming the will invalid.

Another common reason for declaring a will invalid is an assertion that the deceased was under undue influence at the time of the will’s execution. Undue influence may be found in the event the will was executed due to pressure by a third party in a position of power over the deceased. Additionally, someone making a will contest may assert that the party standing to gain from the bequest or devisement fabricated the will and forged the signature of the deceased.

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