Unfortunately, leaving behind a will doesn’t guarantee that your possessions will be distributed in exact accordance with the terms expressed in the will. Even the best made Wills and Trusts are subject to incorrect or unintended interpretations. If bad faith or poor stewardship of an estate is involved, many types of disputes may arise and so a court will allow family members, heirs and beneficiaries to challenge the Will if they feel it is inaccurate or invalid in some way.  

We have previously discussed situations where due to something that happened to the testator (will signer) before they signed the Will, the document is not valid. What I am specifically discussing here is a problem with the document itself that causes it not to work. This is not an especially salacious variety of lawsuit, but it happens. A Will can be deemed invalid if it wasn’t properly constructed or executed. Just as an example, a Will must be signed in front of 2 witnesses and notarized. But if there is a situation where 1 or more of the witnesses signed the Will after the fact, thereby not actually witnessing the signing of the Will, then the document could be deemed as invalid.  

Now, why would you want to attack a Will this way, especially when the Surrogate looks over Wills and makes sure they meet the signing requirements before they admit the Will to probate? One good reason is that sometimes the Surrogate makes mistakes. Another, and more interesting reason, is that sometimes there just isn't enough evidence to prove one of the other causes of action, but for some reason a litigant is sure that someone played fast and loose with the rules regarding when and where the document was notarized or witnessed. Or it could be that the document contains a clause which, if left alone, will subject everyone (not just a group of siblings fighting) to extra tax liability, and it makes sense to attack the Will as probated. This does not happen very often, but a lawyer who does this work on a regular basis will know what to do when the situation arises. 

The idea if a Will is contested successfully and invalidated, is that if there exists a valid prior Will, the court would then defer to the earlier document and distribute the estate's assets in accordance with the earlier version. However, if there is no valid prior will, the estate would be handled in accordance with the state's intestacy laws. Either way, especially when there are substantial tax implications depending on the wording of a Will or a Trust, it might make sense to attack it on the basis of its formalities and get it thrown out.