What are the Legal Grounds for Contesting a Will?

While dramas show heirs routinely challenging a will at its reading, the fact that the heirs don’t like the designation of property is rarely going to stand up in court as a reason to throw the whole document out. There are a number of legal reasons or grounds that someone can have for challenging a will. Let’s look at a few.

Prior Wills

It is quite possible to contest a new will written in the final days of someone’s life when there are questions of their competence, sanity, judgement, or suspicions of undue influence. It is especially strong grounds to challenge a will if you have one or two prior wills with radically different instructions than the most recent will. If you have one or two prior wills dividing assets between someone’s children or grandchildren and a new will that says to give it all to a charity or one’s housekeeper, you can challenge the new will using the prior ones as proof of what the person wanted when in full control of their faculties. And a later will is always a basis to challenge an earlier one.

Incompetence/Insanity

“I, X, being of sound mind and body” is not a rote statement. We only allow those who are mentally fit – sane and rational – to make decisions regarding their own affairs. Someone who is mentally ill can be considered unfit to draft a will. You can challenge a will on the basis of mental disability and incompetence. The mentally retarded cannot ever manage their own affairs, so they cannot write a will handing over a special needs trust to a third party.

This issue arises in broader society due to disabling accidents or dementia. You can challenge a will written after someone survived a car accident if their mental faculties are reduced due to the head trauma. A common problem is a cognitive decline due to dementia. Once someone is declared incompetent, they cannot write a will – but they may have altered a will to please a caregiver or due to misunderstandings of events before such a ruling was made. Thus, the family can contest a will on the basis that the person wasn’t of sound mind when it was drafted.

Duress

A legal basis for contesting a will is duress. This is the reason why changes in power of attorney documents or wills while someone is in a nursing home are often legally invalid unless a social worker is present. The social worker is supposed to ensure that someone doesn’t change their will to favour the institution or a caregiver – including the adult relative paying the bills and determining the quality of care.

Likewise, it is legal to challenge a will if there is evidence that someone physically abused the elder to get them to change the will.

Dotting the T’s and Crossing the I’s

You can challenge a will on the grounds that it wasn’t filled out properly. A will lacking the legal minimum of witnesses or otherwise signed not in accordance with the law can be challenged. A surprisingly common reason for contested wills are clauses in the will that are illegal in the jurisdiction where the estate is being handled; you cannot order someone to marry someone else though you can make being married a condition of inheritance. Contesting a will is reasonable and often successful if the will creator remarried after the will was drafted and any children born after the will was written are legal heirs who can challenge the document if not included.

Conclusion

If you feel any of these scenarios apply to you, we suggest you consult with a law firm that specialises in probate law, living trusts, and wills. They will be able to guide through towards the process and give you an idea of whether you have legal grounds or not.