Families may wish to challenge the probate of a will due to a variety of reasons. While no two cases are identical. However, here are eight common situations where probate can be challenged by family member or other interested party.
1. 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:
- A.R.S. Section 14–2502 (Execution of paper wills; witnessed wills; holographic wills; testamentary intent)
- A.R.S. Section 14-2503 (Holographic / hand-written wills)
- A.R.S. Section 14-2504 (Self-proved Wills)
- A.R.S. Section 14-2505 (limitations on who can be a witness on a will)
2. Testamentary Capacity is Questioned
Another common reason why probate can be contested is when the person making the will, known as the testator, lacked testamentary capacity when executing their will. In other words, they may not have been aware of what they were doing due to a mental illness or impairment. In this case, it will be up to the court to decide if the person was of sound mind and testamentary capacity when creating their will.
3. The Will Was Made Under Duress or Coercion
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. Beneficiary Contest a Portion of the Estate
In some cases, beneficiaries may only wish to contest a portion of the estate. When this is the case, one or more beneficiaries may request for an evaluation of certain aspects of an estate plan, such as requesting further information regarding distributions from an estate account and demanding changes in how particular items are dispersed.
6. Family Disputes
If there are disagreements among family members or beneficiaries about the distribution of the estate, then the probate process may be challenged.
7. Mistakes or Ambiguities
If the will contains mistakes or errors, then it may be challenged. This can happen if the will is unclear or if there are ambiguities in the language used.
8. Breach of fiduciary duty
If the executor of the will breaches their fiduciary duty by acting in their own interests rather than in the interests of the beneficiaries, then the probate process may be challenged.
There Are Other Reasons Probate Can Challenged
This is not an all-inclusive list. If you have a bad feeling about a probate, talk to a probate litigation attorney. The attorney will analyze your situation and tell you your options.
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.