Who can legally challenge a will, and when can it be contested?

On Behalf of | Jun 24, 2021 | Estate Planning

It’s not a casual endeavor.

That is a preliminary point prominently underscored by many commentators addressing challenges to a will during the probate process.

“Not everyone can challenge a will,” notes one in-depth analysis of will contests. If the bar for doing so was notably low, the central importance of a will in the estate planning process would be undermined. Such documents would lack credibility, and both prospective and actual creators (testators) would lose confidence in their autonomy over personal affairs.

Who has the capacity to bring a will challenge?

The above-cited overview of will challenges notes the Uniform Probate Code mandate that only “interested persons” may contest a will.

Although argument can sometimes attach to that, it is mostly the case that interested parties comprise a relatively predictable demographic. Persons who proceed with will contests often fall into one of these camps:

  • beneficiaries (parties specified by a testator in a will who are entitled to receive something of value; common examples are a spouse and children and other relatives, although other persons/entities are also sometimes in the mix)
  • heirs (the most central of all will beneficiaries, noted by the above-linked source as relatives who would receive estate assets even if a person died without having executed a will)

The bottom line is that so-called legal “standing” to challenge a will can be conferred only on parties who would be affected personally and financially by its terms if probated. For that reason, some parties in addition to the above-bulleted individuals – such as creditors and charities – can sometimes also contest a will.

What grounds exist for bringing a will challenge?

Various issues can crop up that a court will deem sufficient to warrant a will challenge. Here are some examples:

  • fail to comply with state requirements imposed to ensure lawful execution (e.g., conformance with rules regarding formalities like the presence of witnesses and the testator’s affixed signature)
  • testator’s lack of capacity (mental competency is often an issue here)
  • undue influence (alleged coercion or manipulation by a third party that results in the loss of a testator’s free will)
  • fraudulent acts (maybe the signer had no idea that the document being executed was a will)
  • abuse of power (frequently a charge against a trustee or executor)

When litigation is necessary: securing proven legal help

Many matters tied to estate planning in Nevada and elsewhere – especially matters like probate proceedings and will particulars – can be complex and with a ready potential for escalation and legal challenge.

When conflict emerges in the probating of an estate, an affected party can turn for candid guidance and diligent representation to a proven estate planning legal team.