As necessary as a last will and testament is to have, much controversy can arise from them. Under certain circumstances, a current or potential beneficiary – referred to as “interested parties” – may feel that the will improperly excluded them from an inheritance. With enough supporting evidence, they can challenge the will.

Let’s say Steve, a nephew of the deceased, was not included in his uncle’s will. Steve feels that he was not included in the will because his deceased uncle was coerced to remove him from the will by a third party. Steve decides to challenge the will, but many other interested parties feel that the will was not affected by coercion and is indeed following the true wishes of the deceased. How would the interested parties go about defending the will against Steve’s challenge?

Ample articles go over the process of challenging a will, but few talk about how to defend against a contest. This article aims to briefly go over what happens when someone contests a will, followed by how to effectively prepare a defense against such a challenge.

What Is a Last Will and Testament?

In brief, a last will is a written document detailing what a person wants done with their property and assets once they die. A properly written will is legally binding, and must be signed by the subject of the will, called the testator. A last will is essentially a list of instructions left behind by the creator of the will, which are executed by a designated person called the “executor” alongside the courts, and initiated by a legal process called “probate.”

Quick Overview of Challenging a Will

A will can be challenged in court for a variety of reasons, including lack of capacity, coercion or manipulation, if the will was not properly signed or finalized, among others. After a testator dies, their will enters the probate process in court. An interested party can challenge the will before the probate process begins, while it is actively happening, and in some specific circumstances, after the probate process has closed.

Not everyone can challenge a will, either. Only those who are an “interested party,” or a person or group who is directly financially damaged as a result of the will in question can challenge it. For more information on challenging a will, please see our article on contesting a will.

Who Defends Against a Contested Will?

Generally, it is the executor of the will who is responsible for defending it against a challenge. An executor is the person who will be responsible for administering the estate upon the passing of the will’s creator. The executor is assigned by the testator, or owner of the will, and is typically a close relative or friend of the deceased. Chiefly, the executor is responsible for paying any outstanding debts and making sure the remaining assets are distributed in accordance with the will.

When a will is contested, the executor must work with legal counsel, locate witnesses, and attend and provide relevant information and evidence in probate court. It is all but necessary for an executor who must defend a will to work with an established estate attorney who can provide proper advice and guidance.

Affirming a Valid a Will

Chiefly, an executor defending a will must first demonstrate that the will is valid in the face of a challenge. There are several elements that are necessary to present in probate court.

One element is that the will must be in writing. The writing can be either handwritten or typed and printed out. In either circumstance, but especially with a handwritten will, it can be helpful to have the document notarized. Typically, this element is pretty easy to show, as a written but unwitnessed will is likely to be challenged very early in the probate process.

Another element regards witnesses to the creation and signing of the will. Generally, it is a best practice that the witnesses not be interested parties to the will. Many states have rules against having an interested party being a witness, and those states that allow it often assume a witness with stake in the will is biased in their testimony. This element is crucial, as a will can be deemed invalid if no witnesses are present when it is signed.

Finally, the last element is that the will must be signed and dated by the testator and the witnesses who can attest to the sound mind of the testator at the time the documents are signed. Hand signatures are accepted everywhere, while only certain states accept electronic signatures. These three elements are the biggest ones to consider when it comes to a valid will, but many other minor elements also exist, namely revolving around the competency of the testator at the time of the signing and the general circumstances of the testator at the time the last will was created.

How to Defend Against a Contested Will

Each will is completely different, and circumstances around a challenge can radically change from case to case. However, there are few general ways that an executor can defend a will against a challenge. Namely, any legitimate evidence that can confirm the validity of the will is fair game in defense.

Many executors will find witnesses to provide expert testimony. A common expert witness is a doctor, typically the doctor of the testator, who can vouch for the mental capacity of the testator at the time of the will’s creation. Medical records will also be crucial evidence. Additionally, if an estate attorney helped to create the will, the attorney will be a crucial expert witness in defending against the contesting of a will.

Other witnesses are often called upon, namely the witnesses to the signing of the will or people who were otherwise involved in the creation of the will. Additionally, outside evidence such as letters, diary entries, and answering machine messages can be used to affirm the intent of the testator regarding their will. 

The rest of the defense will be crafted based on the reasoning of the contest. A contest based on undue influence will be different from a contest based on lack of mental capacity. An executor should consult an estate attorney in order to figure out the best defense for any given reason behind the contesting of a will.

Why Hire an Attorney?

Defending a will is a complicated process, and always requires careful consideration by the executor and interested parties. There are many ways to defend a last will, but only working with a qualified attorney will ensure the best, and most likely successful, defense for a contested will.

At Rosenblum Law, our experienced attorneys will work with you step-by-step in preparing a defense for contested will. In fact, Rosenblum Law offers a full service of wills, trusts, and estates consultations, specializing in every step of the process. Call us now to get the process underway with a free consultation.