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Uncovering the Top Reasons Why Probate can be Challenged and How to Navigate the Process

Judge with gavel ruling when probate can be challenged.

When a loved one passes away, navigating the probate process can be a daunting task. However, what happens when the process becomes even more complicated? In this comprehensive guide, we uncover the top reasons why probate can be challenged and provide valuable insights on how to navigate this complex legal journey.

Probate is the legal process of administering a person’s estate after they pass away. It involves validating the deceased person’s will, identifying their assets, paying off debts, and distributing property to the rightful heirs. While probate is designed to provide a fair and efficient means of handling someone’s estate, it can sometimes be susceptible to challenges and disputes.

Throughout this guide, we delve into the most common reasons why probate can be challenged, including allegations of fraud, undue influence, lack of mental capacity, and improper execution of the will. We also provide practical advice on how to navigate these challenges and offer insights from legal experts who specialize in the field.

If you find yourself facing a contested probate process or simply want to gain a deeper understanding of the potential pitfalls, this guide is an indispensable resource. Join us as we shed light on the complexities of probate challenges and arm you with the knowledge to effectively navigate the process.

Common reasons why probate can be challenged

Probate is a legal process that ensures a deceased person’s assets are distributed according to their wishes and the applicable laws. It provides a framework for resolving any disputes or claims against the estate. The primary purpose of probate is to provide a fair and orderly distribution of assets, protect the rights of all parties involved, and validate the deceased person’s will.

During the probate process, the court oversees the administration of the estate, including validating the will, identifying and appraising assets, paying off debts and taxes, and distributing the remaining assets to the beneficiaries. This process can be time-consuming and complex, especially when challenges arise. Here are the top reasons probate can be challenged …

1. The Will was Not Properly Executed

Probate can be challenged if there are valid reasons to believe the will was not properly executed. It is essential for wills to be properly executed according to State laws in order for them to be legally valid. If the document does not meet the proper requirements, such as being witnessed and written in accordance with applicable statutes, it may be invalidated and challenged in probate court.

Some of the main requirements for wills in Arizona are set forth in the following statutes:

2. Testamentary Capacity is Questioned

Another reason why probate can be challenged is if there are concerns about the deceased person’s testamentary capacity at the time they created their will. Testamentary capacity refers to the mental ability to understand the nature and consequences of making a will.

If it can be proven that the deceased person lacked testamentary capacity when they created their will, the will may be deemed invalid. This can open the door for other potential beneficiaries or interested parties to contest the validity of the will and stake their claim to a portion of the estate.

To navigate this challenge, it is crucial to gather evidence that demonstrates the deceased person’s lack of testamentary capacity. This may include medical records, witness testimonies, or expert opinions from healthcare professionals who can attest to the individual’s mental state at the time the will was created. Again, working with an experienced probate attorney who has expertise in handling testamentary capacity disputes can greatly increase your chances of a successful outcome.

3. Evidence of Undue Influence

If a beneficiary believes they were unjustly excluded or if there’s evidence of undue influence, probate can be challenged. Undue influence refers to situations where the deceased was manipulated or coerced into changing their will or making specific bequests under pressure. Such influence can be exerted by family members, friends, caregivers, or any other person close to the deceased.

To challenge probate on grounds of undue influence:

  • Behavioral Evidence: Demonstrating that the deceased was isolated, dependent, or under the dominant sway of another individual can point towards undue influence.
  • Sudden or Unexplained Changes: A sudden change in a will, especially if done when the deceased was vulnerable, can be indicative of undue influence.
  • Expert Testimonies: In some cases, a psychological or medical expert may be brought in to testify about the deceased’s state of mind or vulnerability to manipulation.

If it can be proven that the testator was pressured, threatened or otherwise coerced into creating a will that does not reflect their true wishes and intentions, the probate court may decide to invalidate the will. This type of situation could occur if an individual is forced to make provisions in their will which benefit someone who has exerted emotional or physical pressure on them. (Also read our blog “Can Elder Abuse Be Financial?“)

4. Fraud or Forgeries Exist in the Will

Fraud in the making of the will usually involves a beneficiary, or sometimes even an attorney, doctoring the will to benefit their own interests. Forgeries made in a will can be challenging to prove but are still grounds for contesting probate. Errors in a will may become apparent as well, such as clauses that are mistakenly left out or incorrect language being used. If a defect or error exists in drafting the document, it could make challenge successful and invalidate the will.

We overturned a Will signed with an “X”

About ten years ago, attorney Paul Deloughery handled a probate case in which he successfully threw out a supposed Will that was signed with an “X”. It involved a greedy ex-husband who wanted his ex-wife’s money and property. He got five witnesses to all swear in court that the ex-wife signed her will with an “X”. However, we produced checks that she signed just prior to the date of the Will and just after the Will was signed. The deceased ex-wife had signed all those checks with a cursive signature. And there were no examples of her signing with an “X”. It took a two-day trial. But the probate commissioner ultimately said she simply did not believe the ex-wife would sign a Will with an “X”.

5. Original Will Cannot Be Located

In the realm of estate planning, the original will carries significant weight. If the original will cannot be located after a person’s death, it can present various complications. Many jurisdictions presume that if the original will, which was last known to be in the possession of the decedent, can’t be found, it was intentionally destroyed by the testator with the intention of revoking it. However, this presumption can be rebutted with evidence showing the contrary. If the will is believed to be merely lost but not revoked, a copy of the will can sometimes be admitted to probate, but this process often requires a higher burden of proof to demonstrate the original will’s validity and the testator’s intentions. Without an original or a proven copy, the estate may be treated as if there were no will at all, meaning assets might be distributed according to state intestacy laws rather than the deceased’s wishes. In these situations, it’s crucial to consult with an estate attorney to navigate the complexities and ensure rightful distribution.

6. Family Disputes

One of the most common reasons why probate can be challenged is due to family disputes. When emotions run high and tensions arise, family members may contest the validity of the will or the deceased person’s intentions. This can lead to lengthy court battles and significant delays in the probate process.

Family disputes can arise for various reasons, such as perceived unequal distribution of assets, disagreements over the deceased person’s wishes, or suspicions of undue influence. It is crucial to handle such disputes with sensitivity and seek legal counsel to navigate the complexities of family dynamics during probate.

7. Mistakes or Ambiguities

Another reason why probate can be challenged is due to mistakes or ambiguities in the will or other estate planning documents. If the language used in the will is unclear or open to interpretation, it can create confusion and disputes among beneficiaries. Additionally, errors in the execution of the will, such as improper witnessing or signing, can also lead to challenges.

To minimize the risk of challenges based on mistakes or ambiguities, it is essential to seek professional assistance when drafting and executing estate planning documents. Working with an experienced attorney can help ensure that the documents are clear, legally valid, and reflect your true intentions.

8. Breach of fiduciary duty

The person responsible for administering the estate, known as the executor or personal representative, has a fiduciary duty to act in the best interests of the estate and its beneficiaries. However, there are instances where the executor breaches this duty, leading to disputes and challenges.

A breach of fiduciary duty can take many forms, such as mismanaging assets, self-dealing, or failing to accurately account for the estate’s finances. If beneficiaries suspect that the executor is not fulfilling their obligations, they have the right to challenge their actions in court.

Hiring an experienced probate attorney

Navigating the complexities of probate challenges requires expert advice and guidance. Hiring an experienced probate attorney can significantly increase your chances of successfully navigating the process and protecting your interests.

A knowledgeable probate attorney can help you understand the legal requirements, assess the validity of any challenges, and develop a comprehensive strategy to address them. They can also assist with gathering evidence, negotiating settlements, and representing you in court if necessary.

When choosing a probate attorney, look for someone with experience in handling probate challenges and a track record of successful outcomes. It is essential to find an attorney who not only understands the legal aspects but also has the ability to navigate the emotional complexities that often accompany probate disputes.

Conclusion: Ensuring a smooth probate process

It’s important to remember that even if a will appears clear-cut, probate can be challenged by interested parties with legitimate concerns. Navigating the probate process can be overwhelming, especially when facing challenges or disputes. This is why it is crucial to hire an experienced probate attorney who can guide you through the process and protect your interests.

A skilled probate attorney will have a deep understanding of the legal complexities involved in probate and will know how to navigate potential challenges. They can assist with the preparation and submission of necessary legal documents, represent you in court if necessary, and provide expert advice and guidance throughout the process.

When selecting a probate attorney, it is important to choose someone with a strong track record in handling probate disputes. Look for an attorney who specializes in probate law and has experience successfully resolving challenges similar to yours. Additionally, consider their reputation, client testimonials, and their ability to effectively communicate and advocate on your behalf.

(We have a great reputation and testimonials. We are rated “Pre-Eminent” with Martindale-Hubbell, the oldest attorney rating system in the U.S. And attorney Paul Deloughery has 25 years experience.)

Find Out If Your Probate Can Be Challenged!

If you believe that a probate decision is unfair or invalid, it is important to take action to protect your rights and interests. At our law firm, we have the expertise and experience to help you challenge a probate decision and achieve the best possible outcome for you and your family.

Don’t let a probate decision go unchallenged if you believe that it is unjust or does not reflect the true wishes of the deceased. Contact us today at 602-443-4888 to schedule a consultation and discuss your legal options. We will listen to your concerns, answer your questions, and provide you with the guidance and representation you need to navigate the complex probate process.

We will work tirelessly to protect your rights and interests, and ensure that you receive the inheritance that you are entitled to. Don’t hesitate – call us today at 602-443-4888 and take the first step towards challenging a probate decision.




Founding attorney Paul Deloughery has been an attorney since 1998, became a Certified Family Wealth Advisor. He is also the founder of Sudden Wealth Protection Law.