It is possible for family members to contest a Last Will and Testament if they are not happy with the way property and custody issues are dealt with in it. However, contesting a will can cause family disputes and your chances of contesting a will successfully are not necessarily that good.
Before taking steps to contest a will, discuss your concerns with other family members first, if possible, to see if they are also dissatisfied with the provisions laid out in it. If others family members are equally unhappy, you can share the legal costs involved. An estate planning attorney will be able to help you contest a will.
There are four legal grounds on which you can contest a Last Will and Testament in the United States. All of them are hard to prove and the legal costs involved in contesting a will can be prohibitive, especially when your chances of winning the case are not high.
That it wasn't signed correctly in accordance with state laws:
This it the main reason why wills are contested and it is on these grounds that most successfully contested wills are found to be invalid. Different states have different laws about how a Last Will and Testament needs to be signed. Even if the will was drawn up by a proper estate lawyer, sometimes the correct legal formalities are not followed.
The deceased person did not have the 'testamentary capacity' to sign their will:
This is very difficult to prove. Lacking testamentary capacity means either that the Testator did not understand the value and nature of their assets; that they did not have a full understanding of who would benefit from their will; and that they did not understand the legal implications of signing a will. State laws are different on what constitutes a lack of testamentary capacity. However, often the criteria is not very strict and even a person who has shown signs of dementia may be judged to be capable in this regard. The witnesses of the signing of the will are vital when it comes to trying to contest a will on these grounds. However, if a doctor was not called out to the Testator within a few days of the will being signed, or the Testator was not judged incapacitated within a similar period, the chances of proving these grounds for contesting a will are small.
The deceased was unduly influenced into signing the will:
More elderly people especially, as they become weaker in body and mind, can be more easily influenced by other people. If someone was pressurized into signing their will, this can be grounds for contesting it. However, the undue influence that they were subject to has to have been severe in order to successfully contest a will on these grounds. Verbal threats and abuse, for example, would not constitute undue influence. The person, or people, exerting the undue influence must have, for example, paid for the will themselves, kept the original will in their possession and perhaps deliberately isolated the deceased person from their family and friends. The criteria for these legal grounds for contesting a will are strict and proving undue influence is extremely difficult.
The will was obtained by fraud:
If a will is successfully contested, then the deceased person's estate will be dealt with as if the person died intestate, or without a will. However, sometimes only part of a will is declared invalid. For example, if it is decided that one of the beneficiaries exercised coercion over the Testator to leave them part of their estate, then that particular provision may be declared invalid. In this instance, that part of the deceased person's property falls into the rest of their estate, or into intestacy. The other provisions set out in the will remain valid.
If you are unhappy with the Last Will and Testament of one of your family members and you feel you want to contest it, decide how much money you are willing to spend doing so and about the effect it will have on family relations. Contesting a will is a long and detailed process that costs a lot of money. It may be that it is not worth the time, expenditure and stress to yourself, and other family members, for you to contest the will.