On what grounds can a Will be contested?

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On what grounds can a Will be contested?

Dad died a week ago. The current wife produced an old Will. I’m the first child from a prior marriage. The Will she produced excludes me and my younger brother from the current marriage. It also does not address property that my father had recently inherited from his parents. Can’t I contest? She is taking care of my brother because it’s her son but leaving me out of everything. She will not even let me have things that he owned prior to their marriage; the stuff he had when he was married to my mom. Is this legel? I know he would want me to have whatever I wanted. Seems to me this us an old Will.

Asked on January 1, 2015 under Estate Planning, South Carolina

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

It doesn't matter how old a will is; it also does not matter if the testator (person making the will) acquired other belongings after making the will--a will is still valid if it had been properly executed and witnesses.

The only grounds to contest a will are mental incapacity (the person making it was not mentally competent at the time he made it), undue influence (someone with an unreasonable amount of influence or control, such as the caregiver for a disabled person, caused the will to be made in his/her favor), fraud (e.g. the will was altered after being made; the signature on the will is not the testator's signature), that it was superceded by a later will (though there'd have to be evidence of the later will), or that the will does not comply with the formal requirements (such as how it is to be signed an witnessed).

It is NOT grounds to contest a will that children are excluded from the will, or that what people believe would have been the testator's "real" wishes (not in the will) are not given effect.


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