Most Kentuckians assume that a written will has the power to preclude any dispute between potential heirs about the distribution of the assets owned by the maker of the will. Unhappily, this assumption is often proved incorrect by the significant number of lawsuits that are commenced with the intention of having a will or a particular term in a will declared invalid. These lawsuits are usually called “will contests,” and they can stir family emotions into an intense and hurtful storm. Understanding the legal grounds for declaring a will to be invalid may help some persons avoid a needless and needlessly expensive lawsuit.
An overview of a will contest
Only individuals who are named as beneficiaries in the contested will or who have a legal interest in the assets of the person who made the will (the “testator”) may start a will contest. The contest must be filed in a county having jurisdiction over the estate, most often the county where the testator lived. The contest must be commenced within two years after the probate application is filed in court. A will cannot be declared invalid merely because the plaintiff in the will contest disagrees with the terms of the will. A person challenging a will must prove that the testator lacked sufficient capacity to make an enforceable will. The legal arguments for invalidating a will may be one or more of the following:
- Improper will execution. To be enforceable, a will in Kentucky must be signed by the testator and witnessed by two credible witnesses. If either of these requirements is not followed, the will is not valid and cannot be enforced by the probate court. Mistakes or ambiguity in the terms of the will can have a similar effect.
- Lack of testamentary capacity. A will contest will succeed if the contestant can prove that the testator lacked the mental capacity to understand the meaning and legal effect of the will. The lack of mental capacity is usually proved by introducing testimony of a psychiatrist or psychologist who treated the testator shortly prior to death. The testimony must show that the testator’s mental functioning had declined to the point where the testator did not comprehend the meaning of the will or of the probate proceeding that governs the execution of the will.
- Undue influence, coercion or duress. A claim involves proving that the testator was subject to undue influence, coercion or duress. Proof of these factors is usually provided by witnesses who observed the testator in a close personal relationship prior to death with a person who was given an unexpectedly generous bequest.
- Fraud or forgery. A similar claim is proof that the testator was the victim of fraud or forgery. Fraud requires proof that the testator relied on a false statement of a material fact and that the testator relied on this statement in making the will. Proof of fraud also requires evidence that the person accused of perpetrating the fraud received a benefit in the will because of the fraud.
The right legal support
Will contests are notoriously difficult to win, which is why probate experts recommend retaining an experienced litigation attorney to assist with the lawsuit.