Charleston Estate Planning | Will ContetsWhen to Challenge a Will

In the typical probate process, the personal representative files a petition admit the last will and testament and the will passes through probate without an issue. In certain cases however someone may wish to challenge a will, which can be done through a will contest. A will contest can be a quite difficult court process. Because the court typically tries to honor the wishes of the grantor and because the grantor is no longer present to express his or her wishes, courts rulings rarely deviate from the provisions of the written will. There are however several important factors that increase the likelihood of a successful will contest. The first condition is that successful will contests usually are challenged by the surviving spouse. The spouse typically understands the interests of the deceased grantor better than any other party, so with reasonable warrants, the court is most understanding and responsive to will contests made by the spouse.

The most common ground to file a will contest is on the ground of testamentary capacity. A proper will must be drafted by an adult of 18 years of age or older and must meet the presumption of testamentary capacity. A litigation that challenges that grantor’s testamentary capacity usually claims that grantor had senility, dementia, mental insanity or substance influence during the construction of the will. Will contests on the grounds of testamentary capacity may also dispute the grantor’s understanding of the extent and value of the estate, the effect of the disposition of the estate, or the provisions and agreements of the will. Claims against testamentary capacity may also argue that the grantor misunderstood the effects of the will on his or her heirs and would have, under right mind, wanted the estate to be allocated differently.

Will contests may also be based on the grounds of fraud, forgery or undue influence. While fraud and forgery both clearly argue that the legal document of the will was directly altered, claims of undue influence suggest that the will was corrupted in indirect  manners. Undue influence claims usually involve a manipulator who has wrongfully coerced or influenced the grantor in the writing of the will. Undue influence charges are often some of the most difficult will contest grounds to prove.

Although most wills go through the probate process unchallenged, there are many cases in which individuals and families should consider pursuing a will contest. Our Charleston estate planning attorneys provide the necessary legal representation to help our clients understand when to file a will contest and when to continue through the probate process.
One easy way to challenge a will is through the presentation of a newer will. Although it is advisable to destroy older wills and remove the possibility of confusion, the personal representative may present a newer will to challenge the provisions of the previous will, provided that both wills are valid wills and were originally drafted by the benefactor. It is thus crucial to always provide dates on estate planning documentation to prevent loved ones from undergoing future estate litigation battles.

Certain provisions of the will may challenged within the atmosphere of the probate court. For this reason, it is important to seek legal counsel to understand whether a particular challenge to a will warrants a will contest or the representation of probate lawyer. Our Charleston estate planning attorneys provide legal counsel to individuals and families to assess your particular case and decide the best legal route to pursue to ensure a proper estate disposition.