An unexpected death can disrupt family harmony in many ways. If the decedent has not left a will, surviving family members may fight about dividing the decedent’s assets. Even if the decedent planned carefully for division of his or her assets upon death, individual family members may feel cheated by the division assets prescribed in the will. In such cases, the family member (or members, in some cases) may elect to start a lawsuit claiming that the will is legally invalid for any number of reasons. Such a lawsuit is usually referred to as a “will contest.”
Challenging the formal requirements
A will can be challenged only by a person who may have an interest in the estate: a child of the deceased, a person alleging an inheritance from the same testator under a prior will. Arizona law imposes certain formal requirements on every person who makes a will. The requirements require that the will be written, that the person making the will (the “testator) must sign it, and the signing must occur in the presence of two persons over the age of 21. The failure to follow these requirements can render a will invalid. Most will contests predicated on the failure to follow the statutory formalities fail because lawyer who draft wills are aware of the dire consequences of failing to honor the statutory formalities, and most, if not all wills executed in Arizona, comply with the statutory rules.
More persuasive arguments generally concern the events of the signing or events that occurred prior to the will’s execution.
Undue influence
Perhaps the most persuasive argument in favor of invalidating a will or a single provision of a will is proof that the testator was subjected to undue influence by one or more of the beneficiaries. Undue influence generally comprises an unusually close relationship between the testator and the heir who received the contested bequest. One of the requisites of validity of a will in Arizona is that the document must be the free act of the testator. Proof that the will was the product of influence exercised by the heir receiving the bequest in question.
Fraud
If one or more heirs made representations to the testator by an heir are proved to have been false, the will may also fail. The representations must be material and must be proved to have influenced the testator.
Consequences of a successful will contest
If a will contest succeeds, the entire will may be declared invalid, and the testator’s assets will pass according to Arizona’s laws of intestate succession. In some cases, only a single provision will be declared invalid, and the balance of testator’s assets will be distributed in accordance with the terms that were not invalidated. An experienced estate planning attorney should be consulted by anyone considering beginning a will contest.