Most of the time a will goes through probate without a problem. However, it's possible to contest a will or challenge it's validity if you feel it wasn't written correctly.
No Contest Clauses
When a will is created, a "no contest" clause can be included to stop anyone from challenging your wishes. Basically, a no contest clause forces you to choose between taking what it's in the will or getting nothing at all.
If you still try to contest the will, and the no contest clause is enforced, you'll be completely disinherited. Your share will be distributed into the residuary estate, unless there are directions regarding what to do with the share.
Other states, however, enforce no contest clauses regardless of whether the beneficiary had a good reason to contest the will. Some states will not enforce such clauses under any circumstances.
Your Own Will
If you decide to include a no contest clause in your will, you must be sure to provide what will happen to the forfeited bequest if the beneficiary does contest. This is called a ''gift-over,'' and without it, the clause may be invalid.
You should check your state laws concerning no-contest clause. However, just the presence of such a clause puts beneficiaries on notice of your intentions.
Agreement with the Beneficiary
It's possible to enter into an enforceable agreement with a beneficiary not to contest your will. If value or consideration is given for the promise not to contest the will, then the no contest clause will be enforceable. States vary regarding the remedies used if there is a breach (i.e. if someone breaks their promise) in the agreement. Check your state laws about how it would enforce the agreement if there is a breach.
Valid Reasons for Contesting a Will
You also must have a valid reason to challenge a will, such as undue influence, fraud, mistake or loss of mental capacity of the testator. Simply being upset with your inheritance amount isn't an actual reason to contest a will.
You Must Have Standing
One of the requirements for contesting a will is that you somehow have a connection to the will and feel harmed by its contents. You either have to be named in the will, but feel that you should have inherited differently, or weren't named in the will and should have been named in it or would have received money if the person had died without a will.
Testamentary Capacity and Formalities
Some will contests are based on allegations that the deceased person, or testator, wasn't "of sound mind" or testamentary capacity to make the decisions in the will according to state laws. In general, wills must be signed and witnessed by at least two people and everyone must be over 18 years of age. These grounds depend on the laws in the state where the will was created, signed and filed for probate.
Fraud, Undue Influence and Mistake
A will, in full or in part, can be found invalid if it was made under undue influence or duress, fraud or mistake. This means that all of or part of the will won't be enforced if any of the above occurs.
Anything that hampers the ability to make a will by the "testator" to their wishes shouldn't be accepted in a court of law. If a will is voided, the estate will be distributed under the state's intestate laws. If only part of the will is void then the share from the voided distribution is dumped into the residuary estate and dispersed according to the will.
Undue Influence
Undue influence could be present when a trusted person influences the testator to make a will that benefits him. The key is whose overall input and intent was put into the will: the creator or the beneficiary.
Fraud
A full will or any part of it may be voided if it was created under fraudulent means. This could happen if the person making the will is presented with information that made them change their mind about whom to leave their property to. If Carol tells her grandfather that her brother, Jim, was a thief to get him to change his will, even though Jim really wasn't a thief, she may have committed fraud.
Mistake
A mistake can be found when it is proven that the testator didn't intend to include certain provisions in a will or if the testator signed the wrong will. When the mistake involves a signature, a court may revise a will that was signed by mistake, such as when it's clear that a husband and wife intended to make reciprocal wills but signed the wrong original documents.
On the other hand, if the testator made a will under a mistaken belief of fact (i.e. was mistaken in his or her belief regarding certain facts), that mistake generally would not invalidate the will.
Next: Tortuous Interference