While the majority of wills proceed through probate court unchallenged, interested parties have the right to contest a will if they suspect fraud, manipulation, inaccuracy, or elder abuse. Successfully contesting a will is challenging, but it’s certainly possible. However, it’s not enough to simply throw a red flag and claim that a will is invalid—the burden of proof lies with the contesting party, and there are only a handful of circumstances provide the grounds to contest a will.

 

Who may challenge a will?

For starters, not everyone can challenge a will. Only interested parties with a beneficial interest in the estate have the right to contest someone’s will. Interested parties are usually limited to legal heirs (a spouse, children, parents, etc.), joint property owners, and creditors. Successful contests generally come from people who are a beneficiary of the current will, were a beneficiary in a previous will, or are a beneficiary on a subsequent will.

 

On what grounds can you contest a will?

Generally speaking, there are 7 situations that provide the grounds to contest a will:

  • The testator was a minor when the will was signed
  • The testator lacked testamentary capacity
  • The will is a fraud or forgery
  • The will was drafted under undue influence
  • There is another will that supersedes the currently accepted version
  • The document is improperly witnessed
  • The will attempts to distribute property that is exempt from probate

 

The testator was a minor when the will was signed

This one is fairly obvious, and it’s the easiest to prove. Minors can’t own property or gift assets, so anyone under the age of 18 is unable to write a will.

 

The testator lacked testamentary capacity

An adult lacks the testamentary capacity to write a valid will if they are mentally incapacitated. While there are many causes of mental incapacitation, common scenarios include a comatose or brain-dead patient, senility, dementia, and Alzheimer’s disease. Keep in mind that the testator’s mental state is only relevant at the time when the will was drafted and signed. If a mentally competent adult drafts a will and becomes incapacitated a few years later, the will is still valid. Proving that a testator lacked testamentary capacity will usually require expert testimony from the testator’s physician or psychologist.

The will is a fraud or forgery

A fraudulent or forged will is usually discovered when someone proves that the signature doesn’t match the testator’s handwriting, or when there is a conflicting version of the will. Fraudulent or forged wills usually result in a judge invalidating the entire will.

 

The will was drafted under undue influence

When someone drafts a will, they need to be free from duress and undue influence. This includes physical, verbal, and financial threats. It’s okay for family members to encourage the testator to take care of their estate planning, and it’s not against the law to make certain requests of their estate, but the testator needs to retain testamentary intent—that is, the genuine intent to freely distribute their assets. If a probate judge finds evidence of undue influence, the judge can invalidate the entire will, or they can choose to selectively dismiss individual aspects of the will that were unduly influenced.

 

There is another will that supersedes the currently accepted version

There is a reason a person’s will is referred to as their last will and testament—only the most recent version of the document will be considered valid. As people’s life circumstances and goals change over time, it’s quite common to see them amend their will, or replace an old will with a new one. If the court receives an authentic will that is dated after the previously accepted version of the will, the judge will invalidate the old will.

 

The document is improperly witnessed

The state of Arizona requires the signatures of two witnesses to the will. Some states bar beneficiaries from serving as witnesses, but Arizona law allows anyone to sign as a witness. If the will doesn’t have two witness signatures, the document may be invalidated. If there is a strong suspicion of fraud or forgery, the judge can summon the witnesses to appear in court and authenticate their signatures.

Note that handwritten wills (also called holographic wills) are legal in Arizona, and they are valid with or without witness signatures. As long as the signature and material portions of the will match the testator’s handwriting, there wouldn’t be any grounds to contest the will due to a lack of witnesses.

 

The will attempts to distribute property that is exempt from probate

Wills can only direct the distribution of assets that are subject to probate. Assets that have a contractual beneficiary listed on the account are exempt from probate and cannot be directed by will. If a will attempts to assign non-probate assets, the contractual beneficiary listed on the account will always trump the instructions in the will. Successful will contests in this area usually result in the judge invalidating only parts of the will, rather than invalidating the entire document.

How to contest a will

There are 3 steps to contest a will:

  1. Consult with an attorney – contesting a will is not an easy task, and it will certainly require the assistance of an experienced attorney. Before you do anything, consult with an attorney to ensure that you have the standing and grounds to successfully contest the will. You’ll also need to make sure you’re within the applicable statute of limitations, which can vary from state to state and case to case.
  2. File an objection with the county probate court – once your attorney has validated your claims, the attorney will file a formal objection with the county court. The probate judge will schedule a hearing, and someone will be tasked with serving official notice to any other interested parties who may wish to attend the hearing.
  3. Present your evidence at the probate hearing – your attorney will argue your case before the judge and present evidence that substantiates the will contest. Expect to meet resistance from other interested parties who disagree with your objection, so you’ll want to come to the hearing fully prepared with applicable evidence and testimony.

 

Do You Need Help with Probate Matters?

As you can see, AZ probate laws can be complex. It requires a number of steps and without the right approach, it’s easy to get lost in the details.

At JacksonWhite, we can make probate a clear, easy-to-understand process. If you’d like help with probate matters, call the talented team at JacksonWhite Law today.

We can help explain your legal options and direct you to the probate solution that works for you and your loved ones.

Call us at (480) 464-1111 or fill out the form below.