Can someone challenge the Will during Probate?

One function of the Probate process is to confirm the Will meets all requirements and is legally valid. Although uncommon, it is possible for someone to challenge the Will and allege that it should not be deemed valid. 

The details vary by state, but generally Wills are valid if:

  • Writing: a Will generally must be in writing, though some states allow for this to be digital 
  • Execution: a Will generally must be
    • Signed by the Testator
    • Signed by two eligible Witnesses
  • Eligibility: a Will must also meet certain requirements
    • The Testator intended the document to be a Will
    • The Testator met all legal requirements (was of legal age and mental capacity)
    • There was no fraud, coercion, or duress 
  • Revocation: a Will must not have been revoked 
    • A Will may be revoked by physical act such as destroying it or even writing “revoked”
    • A Will may be revoked by operation of law in some cases
    • A Will may be revoked ba a subsequent writing, such as a more recent Will

Some more common challenges include alleging the Will was not properly executed (e.g., it lacks the required witnesses), that the Testator failed the eligibility requirements (e.g., the Testator was not of sound mind), or that the Will was revoked (e.g., a later Will was made, revoking an earlier Will).

It is important to note that a challenge does not mean the Will is going to be found invalid. In many cases a challenge is made but fails and the Will is ultimately validated and probate will proceed.

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