What is a “will contest”?

When most South Carolinians sign their will, they assume that its words will be given the meaning that was intended when the will was signed. While almost 100% of wills signed in South Carolina pass through probate without challenge, the validity of a few wills is challenged (or “contested,” to use the legal term) by one or more individuals who believe that they are entitled to a greater share of the maker’s estate than the express words of the will appear to give them. In such cases, anyone who feels that they have received a smaller share of the testator’s estate than was intended when the will was signed can bring a law suit challenging the validity or meaning of the will. If the person bringing such a challenge prevails, the probate court will not follow the will’s express provisions.

The basics

All states impose certain formal requirements on wills in order that they will be determined to be valid and enforceable. In South Carolina, the will must be in writing, signed by the testator, and signed by two witnesses. If any of these formal requirements is not followed, the will may be declared invalid in its entirety, and the probate court will distribute the testator’s assets as if there had never been a will.

Because most wills are drafted by attorneys who also supervise the will’s execution, the chances of a successful challenge based upon the failure to follow the statutory formalities are very small. Most successful challenges rely on more substantive reasons for challenging the will.

Undue influence

Perhaps the most common ground for successfully challenging a will is proof of undue influence. In such cases, the will’s challenger tries to prove that someone who would not ordinarily be a beneficiary used his or her relationship with the testator to persuade the testator to include a bequest to the influencer that would not have been made if the testator had been free from the undue influence.

Lack of testamentary capacity

The validity of a will depends upon whether the testator possessed testamentary capacity when the will was executed. No one under the age of 18 can create a will because they lack such capacity. Likewise, a person whose mental capacity has been diminished by a mental condition, such as dementia, senility, or Alzheimer’s disease, is likewise deemed to lack testamentary capacity. A will executed by a person who lacks testamentary capacity is generally determined to be completely void, and none of its provisions will be enforced.

Anyone who questions the validity of a will may wish to consult an experienced estate planning attorney for advice. A knowledgeable lawyer can provide an analysis of the will and evidence of invalidity and then provide an opinion on the likelihood of pursuing a successful challenge to the will.