No matter how carefully a will is drafted, disagreements sometimes arise among heirs and others concerning the will’s authenticity or about the proper distribution of the deceased person’s assets.
A will contest is a formal challenge lodged during probate court proceedings by an interested party, who under Arizona law may be a beneficiary named in the will or may be an heir of the deceased, whether or not named in the will. The will contest can challenge the legitimacy of a particular bequest or the validity of the will as a whole.
Arizona recognizes several grounds for contesting a will. They range from questioning the will’s authenticity to doubting the decedent’s ability to make a will to claiming illicit acts by third parties. These are the most common grounds:
- Improper will execution — A challenger can claim that the will was not created according to law. In Arizona, a will must be signed by the person making the will (the “testator”) in the presence of two witnesses. The witnesses must also sign the will and attest that the testator told them the document was indeed his will.
- Testamentary incapacity — The testator must have been of sound mind when executing the will. This means he or she was aware of the significance of creating the will and of the amount and nature of the assets that would be distributed under the will. He or she also must have had the intent to distribute their estate in this manner.
- Undue influence — An interested party may contend that a third party (or one of the other beneficiaries) exerted coercion, fraud or another kind of “undue influence” over the testator. This situation may arise in disputes among the birth children and stepchildren of the testator, the birth children and second wives and husbands.
- Vague or ineffective terms — If any of the will’s provisions seem ambiguous, conflicting or incapable of being followed, a contest may be limited to challenging those provisions or may seek to void the entire will. An example is a bequest to a child who has since died and left no heirs. Whenever possible, the probate court will interpret the will to sever the faulty provisions from the rest of the will so that the testator’s intent can best be honored and the rightful beneficiaries protected.
If the probate court agrees that a will contest is sustained, the court can void the will and distribute the decedent’s assets according to Arizona intestacy laws.
Although some contests are unavoidable, an experienced Arizona estate planning attorney can draft a strong and effective will that clearly sets forth your intentions for distribution of your assets after your death.