A last will and testament typically outline’s how someone’s assets should be distributed upon their death. It is fair to assume that this document provides the final say in what happens to your estate. In a sense, it is. However, there are certain scenarios (or grounds) for contesting the validity of a will. Whether or not it ever applies to you, it is smart to be aware of the possibilities.
Let’s break it down:
What Does It Mean to Contest a Will?
- Contesting a will is a formal legal process that allows interested parties to question whether some part or the entirety of a will is legally valid and enforceable.
- During the probate process (which is the court-supervised administration of the estate), you can raise timely objections to the will. Your goal is to show why the estate planning document has issues that should prevent the court from following its instructions.
- Fun fact: Many wills include something called a “no-contest clause.” This clause does not mean you cannot challenge the will, but if your challenge is not in good faith, there might be penalties—like losing some or all of your inheritance. So, tread carefully!
Who Can Contest a Will?
- First, you need to have legal standing or the authority to raise timely objections to a will in court. An action to contest a will must be brought within 8 months for informal probate and one year for formal probate of the decedents date of death.S.C. CODE ANN. §§ 62-3-109, -803.
- Here are the two main groups of people who usually have the authority to contest a will:
- Current or Past Beneficiaries: These are individuals or entities who stand to inherit something from the deceased based on the instructions in the will. Whether they are beneficiaries in the current will, were beneficiaries in a previous will, or if they would have inherited if there was no will, they have the right to challenge.
- Direct Pecuniary Interest: Even if you are not specifically named in the will, you can still contest it if you have a direct financial interest in the estate.
Common Grounds for Contesting a Will:
- Undue influence by someone close to the deceased
- Duress (coercion)
- Revocation (when the deceased intentionally revoked the will)
- Mistake (maybe there was an error in the will)
- Lack of capacity (if the person was not mentally competent when signing the will)
- Improper execution (like not following the legal requirements for creating a valid will)
- Fraud (someone deceived the testator—the person who made the will)
Contesting a will can be timely, expensive, and emotionally draining. If you, a friend, or a family member find yourself in a situation like this, we recommend consulting with an attorney as soon as possible. If you have any questions, please contact our legal team because we are eager to help!
This is not legal advice.