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Encyclopedia > Will contest

A will contest, in the law of property, is a formal objection raised against the validity of a will, based on the contention that the will does not reflect the actual intent of the testator (the party who made the will). Will contests generally focus on the assertion that the testator lacked capacity, was operating under an insane delusion, or was subject to undue influence. A will may be challenged in its entirety, or only in part. Law (a loanword from Old Norse lag), in politics and jurisprudence, is a set of rules or norms of conduct which mandate, proscribe or permit specified relationships among people and organizations, provide methods for ensuring the impartial treatment of such people, and provide punishments for those who do not follow... Property law is the law that governs the various forms of ownership in real property (land as distinct from personal or moveable possessions) and in personal property, within the common law legal system. ... In the law, a will or testament is a documentary instrument by which a person (the testator) regulates the rights of others over the testators property or family after their death. ... Capacity is a legal term that refers to the ability of persons to make certain binding dispositions of their rights, such as entering into contracts, making gifts, or writing a valid will. ... Insanity (sometimes, madness) is a semi-permanent severe disorder of the mind, typically as a result of mental illness. ... Undue influence (as a term in jurisprudence) is an equitable doctrine that involves one person taking advantage of a position of power over another person. ...


In many states, a legal presumption of undue influence arises where a beneficiary under the will stands in a confidential relationship with the testator. For example, where a testator leaves property to the attorney who drew up the will.


A will may include an in terrorem clause, with language along the lines of "any person who contests this will shall forfeit his legacy", which operates to disinherit any person who challenges the validity of the will. However, since this clause is within the will itself, a successful challenge to the will will render the clause meaningless. Many states consider such clauses void as a matter of public policy. In terrorem, Latin for in [order to] frighten, is a legal term used to describe a warning, usually one given in hope of compelling someone to act without resorting to a lawsuit or criminal prosecution. ...


Standing to contest a will

Typically, standing to contest the validity of a will is limited to two classes of persons:

  1. Those who are named on the face of the will;
  2. Those who would inherit from the testator if the will was invalid

The following example is instructive: Monica makes a will leaving $5,000 each to her husband, Chandler, her brother, Ross, her neighbor, Joey, and her best friend, Rachel. Chandler tells Monica that he will divorce her if she does not disown Ross, which would humiliate her; later, Ross tells Monica (untruthfully) that Chandler is having an affair with Phoebe, which Monica believes. Distraught, Monica rewrites her will, disowning both Chandler and Ross. The attorney who drafts the will accidentally writes the gift to Rachel as $500 instead of $5,000; and also accidentally leaves Joey out entirely.


Under these facts, Chandler can contest the will as the product of fraud in the inducement, because if the will is invalid, he will inherit Monica's property, as the surviving spouse. Ross can contest the will as the product of Chandler’s undue influence, because Ross will inherit Monica's property if Chandler’s behavior disqualifies Chandler from inheriting (note, however, that many jurisdictions do not consider a threat of divorce to be undue influence). Rachel has standing to contest the will, because she is named in the document – but she will not be permitted to submit any evidence as to the mistake because it is not an ambiguous term. Instead, she will have to sue Monica's lawyer for legal malpractice to recover the difference. Finally, Joey is neither someone who stands to inherit from Monica, nor named in the will, and therefore is barred from contesting the will altogether. Undue influence (as a term in jurisprudence) is an equitable doctrine that involves one person taking advantage of a position of power over another person. ...


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