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Charleston Estate Planning & Asset Protection Blog

Sunday, April 14, 2019

How Do I Contest a Will?

Contesting a will is a common form of probate and estate litigation. Families may disagree about the final wishes of a loved one or disagree about how property should be distributed from an estate. In some cases, family members disagree about the terms of a testamentary trust or guardianship for a minor child. If you believe that you have grounds to contest a will, you may want to contact a Charleston wills and trusts lawyer to discuss your situation.

Grounds for Contesting a Will in Charleston

There are several grounds someone may use to attack the validity of a will. Some of the most common grounds used to contest a will include:

Lack of Legal Requirements

Charleston has specific requirements for wills. Wills that are executed in South Carolina must be written; contain the testator’s signature (or be signed by someone in the testator’s presence and by the testator’s direction); and, signed by at least two witnesses who attest the testator signed the will or knowingly directed another person to sign the will on the testator’s behalf. Most wills are self-proving wills, meaning they were signed in the presence of a Notary Public or other officer authorized to administer oaths. If a will does not meet the basic legal requirements, it may be invalid upon being contested in court.

Duress and Undue Influence

For a will to be valid, a testator must sign the will without being coerced or forced to sign the will. Use of pressure, fear, or other tactics to unduly influence a person to sign a will can render the will void. Undue influence does not need to be negative. A person can convince the testator to change a will out of a sense of love, compassion, fairness, or friendship.  Anyone can exert undue influence, including spouses, children, parents, friends, health care workers, nurses, aides, religious leaders, other family members, and new “friends or acquaintances” that suddenly appear in someone’s life.

Lack of Legal Capacity or Diminished Mental Capacity

A person must be at least 18 years of age and must be of sound mind to execute a will. Challenges to a testator’s competency may involve allegations of dementia, Alzheimer’s disease, mental disorders, and other conditions that make it impossible for the testator to understand fully what he or she is signing. A person who is under the influence of alcohol or certain drugs may also lack the capacity to sign a will.

Fraud and Forgeries

Fraud may consist of tricking a testator into changing a will or including certain terms in a will. Forged documents are invalid upon proof of the forgery.

Filing a Formal Contest to a Will

Anyone who wishes to contest a will must do so by filing the proper documents with the probate court with jurisdiction over the estate. If the will was validly executed pursuant to state law, the person contesting the will has the burden of proving that the will is invalid based on other grounds.

Evidence used to prove that a will is invalid may include:

  • Medical records;
  • Testimony from medical experts;
  • Testimony from the individuals who witnessed the testator sign the will; or,
  • Testimony from individuals who knew the testator and is familiar with the testator’s state of mind, desires, and abilities at the time the will was signed.

Contact a Charleston Wills and Trusts Attorney for More Information

A will ensures that your final wishes are carried out after your death. It also avoids the unnecessary cost and time involved in administering an intestate estate. However, you need to ensure your will is valid and enforceable.

A Charleston wills and trusts attorney can help you draft a will as part of a comprehensive estate plan that meets your goals and needs while protecting your loved ones and your property. Contact us today.

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Wiles Law Firm, LLC helps clients with their estate planning needs in Charleston, South Carolina and the surrounding areas such as West Ashley, Summerville, North Charleston, Mount Pleasant, and John's Island.

Information on this website is not legal advice. Further, viewing of the enclosed information does not create an attorney-client relationship with Wiles Law Firm, LLC. Matters will be handled by attorneys who primarily practice out of our office in Charleston County located at 852 Lowcountry Blvd., Ste. 101, Mt. Pleasant, SC 29464. M. Emerson Wiles, III is the attorney responsible for this advertisement.

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