Contesting a will happens when you challenge the will of someone who has passed away. This can happen for many reasons, and they often include family members or beneficiaries who believe that the will does not reflect the testator’s true wishes.
Why Do People Contest Wills?
We will explore 10 common reasons why people contest wills in this blog post, consider whether it is worth contesting a will, what the chances of winning are, who is liable for costs, and how to avoid contests.
10 Common Reasons Why People Contest Wills
1. Lack of Testamentary Capacity
One of the most frequently used bases for contesting a will is that the person who made the will (called the testator) didn’t possess the mental capacity to know what they were doing.
This can be a result of being sick, for instance, dementia, Alzheimer’s, and cognitive disorders. That is essential to the validity of a will, that the testator knew what he was doing and what he was signing.
2. Undue Influence
Undue Influence. Another popular reason to challenge a will is undue influence. This occurs when pressure, force, or unconscionable conduct is brought to bear on the testator by another person, and that pressure, etc., leads to the testator making a will that is not what they would have wanted.
The individual committing undue influence preys upon the testator at a weakened point, e.g., old age, illness, and isolation. Proving undue influence can be challenging because it usually takes place in private.
Proof could include such things as being suspicious (suspicious circumstances could be things like:
- The testator’s will is changed at the last minute, leaving everything to one person.
- Family members aren’t allowed access to the testator.
- A person who gains significantly from the will’s inheritance is not available.
- The testator’s free will was overcome.
3. Fraud or Forgery
Different types of grounds could invalidate a will. A firm ground is fraud or forgery. Fraud implies a deceit that leads the testator to reach decisions that, if the information had not been deceptively provided, would not have been made.
There are various ways a will can be challenged if the testator was tricked into signing it, such as if the testator was given false information about the contents of the will or somebody forged the testator’s signature.
Is it faked, the will, or the signature? If true, the will is invalid, and the estate can be distributed under a prior will or as per intestacy laws.
4. Improper Execution
Failure of execution is when a will fails to comply with the necessary signing and witnessing requirements. Because these rules are crucial in safeguarding the testator’s true desires, failure to abide by these rules can render a will invalid.
This is one of the most popular and influential reasons to contest a will. The process of writing of wills is, therefore, the task to which the most excellent attention should be given, and it ought to be done with great care (if possible with the assistance of a succession lawyer in Kenya) and with strict regard to all legal requirements.
5. Revocation of the Will
The revocation of a will occurs when a testator does away with an old will by executing a new one or destroying the old one.
Where there are two wills, uncertainty may arise, or it is uncertain whether it was the testator’s will that his former will should be revoked.
This liminal state can result in a challenge, with the judiciary needing to determine the will’s authenticity and even which one the testator truly intended.
Understanding revocation can also help avoid liability, disputes, and other issues that might arise when revocation has occurred.
6. Disinheritance of Close Family Members
Spouses or children omitted from a will may challenge the document, particularly if they feel they were unfairly cut out, or the exclusion resulted from undue influence or a lack of capacity.
In some jurisdictions, laws protect spouses and children from a total disinheritance, and thus, such persons’ being disinherited can form the basis for a will contest.
7. Unequal Treatment of Beneficiaries
Disparate treatment of beneficiaries could result in some heirs receiving more than others from a will. It can be done and cause issues if there is no easy answer, if it’s unclear, or if it’s unfair.
Courts will search for a rational explanation for the asymmetrical shares should a will be challenged.
Awareness of this can enable beneficiaries to consider when it is or isn’t worth contesting a will and how to do so.
8. Complicated Family Dynamics
Complex family dynamics increase the likelihood of inheritance disputes. When families involve stepchildren, divorces, remarriages, or blended families, potential conflicts over who gets what can occur.
Unfortunately, these fermented feelings can sometimes challenge a will, as relatives work to defend their interests or challenge decisions they feel are unjust.
Understanding these relationships can assist families in planning their wills thoughtfully to avoid later disputes.
9. Failure to Update the Will
Not updating the will is not updating the will as it’s not updated in the sense of relationship changes or changes in the value of assets. This can be a source of arguments and reasons for contesting a will.
To prevent disputes, it is essential to have wills revised and refreshed over time to ensure they reflect the testator’s wishes.
10. Suspicion of Tampering
When there is proof that the will was modified, defaced, or interfered with after signing it, in that case, it may be contested due to signatures made when the testator was unaware of what he was signing or without the testator’s approval.
Will contests are often based on difficult legal and factual issues; the more complex the problems, the greater the potential for conflict.
Among them, one of the best grounds is the absence of testamentary capacity, which must be proved repeatedly that the deceased person did not understand what was happening when writing a will, the value of their assets, or who should benefit.
Is It Worth Contesting a Will?
Challenging a will is not a matter to be taken lightly. Emotionally draining, time-consuming, and expensive. Success depends on the quality of evidence presented and the basis under which the will is being contested.
If you think there is a legitimate reason, like fraud or undue influence, it’s probably worth going after. However, if you have weak grounds, the contest might be lost, and you could be left with legal fees and no gain.
What Are the Chances of Contesting a Will and Winning?
The degree of success a will contest will have depends mainly on the facts and circumstances and the jurisdictional law applied.
Contesting a will based on testamentary capacity and undue influence can be difficult because the contesting party has to prove a negative.
The courts frequently assume that a duly executed testament is valid unless strong evidence establishes the contrary. So whether you will successfully contest a will depends on how good your evidence is and what the legal standards are in your area.
Who Pays the Legal Costs When Contesting a Will?
Contesting a will is not cheap. Ordinarily, counsel fees will be borne by each party, except for some provision specified by the court. In many cases (if you win), the court will order that the loser pay the costs incurred.
But this isn’t guaranteed, and disputing a will can prove costly. The typical price for challenging a will varies depending on the case’s complexity and how long it takes to work through the courts.
Finding the Best Lawyers for Contesting a Will in Kenya
Should you require assistance challenging a will in Kenya, ensure that you engage experienced advocates in Kenya specializing in inheritance (probate and estate) disputes.
Search for lawyers in Kenya with a good history of litigating will contests and knowledge of Kenyan laws relating to wills and probate. They can help walk you through the process, increase your chances of success, and help keep down legal expenses.
How Do You Prevent Someone from Contesting a Will?
The truth is, you cannot completely prevent someone from contesting a will. Anyone with a legal interest in the estate can challenge it. However, you can reduce the risk by:
- Making sure the will is drafted correctly and executed with legal help.
- Ensuring the testator has full mental capacity when making the will.
- Avoiding undue influence by having the testator create the will independently.
- Keep clear records and have witnesses present during the will signing.
- Updating the will regularly to reflect current wishes.
- Destroying old wills to avoid confusion.
Conclusion
Challenging a will should be done carefully, considering the legal basis and risks involved. Knowing why people contest wills, how it’s done, and what you can do to protect yourself, your heirs, and your property in these situations can help you make a reasoned decision amid emotionally challenging times.
FAQs
What are the most common grounds for contesting a will?
Some top reasons for challenging a will are testamentary incapacity, undue influence, fraud, forgery, improper execution, and/or revocation of a will.
What is the best way to contest a will?
The best way is to spend time with a lawyer specializing in the law in your area, gather robust evidence, and file a formal challenge in probate court within the time frame the courts have set.
What is the biggest mistake in a will?
Frequent errors are neglecting to update the will, attesting to it, or failure to properly sign it or witness it, ambiguous language, and not accounting for the testator’s mental capacity.
What is the meaning of contest of wills?
A will contest is a challenge to the validity or interpretation of a will, and can be based on several grounds.
