When and How to Contest a Will

When and how do you contest a Last Will and Testament? The answer is both simple and quite complex. The simple answer is to file what is called a “Caveat” in the estate where the Will is being probated. A Caveat outlines the grounds by which the Will is being contested, typically attacking what makes a Will valid.

A Last Will and Testament is valid when signed by the individual making the Will, referred to as the “testator”, and also signed by two competent witnesses. The witnesses to a Will are necessary to meet the statutory requirements for an attested written will. Requirements for a valid Will don’t stop there: the testator must be of sound mind and signs the Will with the intent to do so.

The complexity in a Caveat proceeding comes in proving the testator’s state of mind and their intent to execute a Will. The threshold for mental capacity to execute a Will is different from what is normally considered competent or incompetent. The testator must possess “testamentary capacity” meaning the testator knows who their natural heirs are, what assets they have, knows they are making a Will, and understands the consequences the Will has on their estate.

In a Caveat proceeding, it is common to seek medical records, medication lists, and do an in-depth review of the testator’s mental condition during discovery to determine the exact extent of their capacity and level of knowledge one could or could not have when the Will was executed.

The second prong, intent, can be just as complex. If someone coerces or otherwise influences the creation of the Will, a Caveat can seek to have the will set aside based on the undue influence or duress of another. This can occur, for example, when the testator is being isolated from family and becomes vulnerable to someone who may be taking care of them, and that someone stands to benefit from the creation of the Will.

In some cases, if the testator had executed a Will before losing capacity or before being subjected to undue influence and duress, the courts will allow the probate of the original Will to follow the true intent of the testator. A caveat must be filed within three years of the Will being submitted to Probate, with some exceptions.

If you suspect that a loved one’s Last Will and Testament may be invalid or was created under suspicious circumstances, we’re here to help.  Please give us a call at (919) 782-3500 to schedule your consultation today and protect your loved one’s legacy.