Challenging the Will: Will Contests

Question 1

Standing to Object to Probate or Contest a Will

Answer 1

Only someone who will have a beneficial interest if they succeed has the standing to challenge a will. Heirs always have standing even if not named in an earlier will.

Question 2

Grounds for Contest of a Properly Executed Will

Answer 2

Include:

• lack of testamentary capacity
• undue influence
• mistake
• fraud
• ambiguity (patent or latent)

Question 3

Patent Ambiguities

Answer 3

Appear on the face of the instrument.

Question 4

Latent Ambiguities

Answer 4

When language of the will could benefit multiple parties, competing parties, or apply to different property due to lack of specificity.

Question 5

When an Ambiguity is Established

Answer 5

Both direct and circumstantial evidence of the donor’s intent may be considered to resolve it.

Question 6

In Terrorem Clauses (No-Contest Clauses)

Answer 6

Attempts to disqualify anyone contesting the will from taking under it. Are generally permissible, but courts dislike such clauses and tend to construe them narrowly.

Question 7

In Terrorem Clauses: Fraud

Answer 7

Such clauses are never enforced against a party that is asserting fraud.

Question 8

In Terrorem Clauses: Exam Tip

Answer 8

Remember that if you can prove that the formalities of the will were not satisfied, the will is invalid, therefore, the in terrorem clause is also invalid.