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What are the grounds for challenging a will?


After someone dies, it is common for relatives and friends to disagree over who gets what property. Perhaps a special niece or nephew had always admired a valuable piece of art or jewelry, or the neighbors say your parent promised they could have the cement bird bath. If your loved one executed a will according to South Carolina law, those people may not have a claim to the property if the document does not name them as heirs.

However, even following the laws and stipulations for valid estate planning may not be enough if you or other heirs feel the terms of your parent's will do not truly express his or her wishes. This feeling must be more than just a dissatisfaction with your share of the inheritance because there are strict limitations on the reasons why you can challenge a loved one's will.

Prepare for a fight

You may have noticed that your parent was not himself or herself in the last days of life. Perhaps your loved one was more forgetful or had even fallen into dementia. If it was during this time that your parent executed a will, you may have reason to believe your loved one lacked testamentary capacity. This may seem like an easy matter to prove, but the threshold for testamentary capacity is quite low, and even someone with dementia may have enough mental acuity to sign a will.

Valid grounds for contesting a will include the following:

  • Your loved one lacked understanding that he or she was signing a will, the contents of the estate, and the people who should naturally inherit the assets.
  • You have evidence that someone took advantage of your parent's vulnerable condition to pressure him or her into changing the contents of the will.
  • You can prove through witness testimony that someone tricked your loved one into signing the will, perhaps because your parent thought the document was related to something else.
  • The will does not conform to the laws of South Carolina, including being a written document with appropriate witnesses.

The courts assume a will is valid, so the burden of proof for challenging the will falls on you. A will contest is rarely an easy task. You may need to gather those who witnessed the will signing, medical opinions and other documentation. A skilled attorney with experience in probate challenges can be an invaluable advocate.

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