It’s not unusual for an heir to be unhappy about the contents of a loved one’s Will. Being left out of a Will or receiving less than you expected is difficult to accept. However, winning a Will contest (a lawsuit challenging the validity of a Will) is no easy task.

In order to have a Will invalidated, the person challenging it has to prove one of four things:

1. That the Will wasn’t properly executed. This means that the Will, on its face, wasn’t signed and witnessed according to the requirements of state law.

2. That the person making the Will lacked legal capacity. A person can lack capacity to make a Will for a number of reasons. For instance, children can’t make Wills because, as a matter of state law, they’re presumed to be incapable of doing so.

When it comes to adults, lack of capacity means that you don’t understand or aren’t aware of:

• What assets you own;
• The “natural objects of your bounty” (i.e., those people, such as your spouse and children, who would normally inherit your assets); and
• The legal effect that signing your Will will have (i.e., passing on assets to certain individuals or cutting certain individuals out of an expected inheritance)

Showing lack of legal capacity means presenting witnesses to prove that the person making the Will really was not aware of what was going on at the time the Will was signed.

3. That the person making the Will was subject to undue influence. This is a little different than showing a lack of legal capacity. In order to show undue influence, the person challenging the Will has to demonstrate that the maker of the Will was under the control of another individual to such an extent that he or she was powerless to exert his or her own desires, and instead, the Will reflects the desires of the influencer.

4. That the Will is a result of fraud. This requires proof that the maker of the Will was tricked into signing the document. Most often, fraud is proven where witnesses can testify that the maker of the Will thought that he or she was signing another document, like a power of attorney, when, in actuality, it was the Will that was signed.

Challenging a Will and winning requires more than just showing that the document is unfair. There’s a very high standard to meet before a court will declare a Will invalid, and most people who are unhappy about the contents of a Will never make it past the courthouse steps.

The Law Offices of James A. Miller is a member of the American Academy of Estate Planning Attorneys.