A will can be contested by anyone who is an heir (or other interested person) of the person executing the will (the testator).
How Do I Contest a Will?
In a will contest, all of the following are necessary:
- Standing – The person disputing the will must be either an heir of the testator or someone named as a beneficiary (or devisee) in a previous will.
- Notice of the Probate – Once a Personal Representative is appointed, you should receive notice of the probate process (the form is also referred to as “Information to Heirs and Devisees”).
- Summons & Complaint – You must file a Summons and Complaint (or Petition) with the Probate Court. This complicated legal document should be prepared by an attorney and must be filed within eight months from informal probate or one year from the testator’s death, whichever is later. This document will explain your objections to the will.
- Discovery – There will be discovery (gather evidence) and motions, followed by a hearing or trial. Again, this process is extraordinarily complex, and you will benefit from the use of an attorney.
Reasons to Contest a Will
You cannot file a will contest just because you did not like the way the assets were divided. To contest a will, there are several potential causes of actions (reasons) but here are a few:
- Testator was Incompetent or lacked capacity
- Testator was under the undue influence of another person
- Testator made mistakes in writing the will or didn’t understand that they were signing a will
- Not in compliance with execution and witness requirements
Probate is a highly technical process, so any one of these objections might well be cause to overturn the will as written and be submitted to probate.
Call Us Today to Speak with an Estate & Probate Lawyer in South Carolina
If you are considering challenging a will, you should consult with an experienced probate attorney immediately. Your window of time to challenge is short. To schedule an appointment with a knowledgeable estate attorney, contact our offices today at 803-918-5164.
FAQs About Will Challenges
What happens if my challenge succeeds?
If you win the will contest, the Court will determine if a previous will is admitted to probate or if the estate will be administered pursuant to the laws of intestacy.
How can I prevent a challenge to my will?
The first thing to do is work with your attorney to make sure that everything was done right in the first place. Be sure the will is properly executed and that your capacity is apparent. Another possibility is a no-contest clause, which says that anyone who contests the will becomes ineligible to inherit under it. These clauses are generally enforceable but there are exceptions.