Contest will

If you’ve been intentionally disinherited or unintentionally left out of the will, you might be wondering what legal options you have to challenge the will.

South Carolina Code Section 62-3-407 lists six grounds for contesting a will. These six grounds are found in many states as they come from common law, but exact laws regarding contesting a will vary by state.

In South Carolina (and many other states), grounds for contesting a will are:

• Lack of testamentary intent or capacity
• Revocation
• Mistake
• Fraud
• Duress
• Undue influence

It’s not enough to simply be unhappy with the terms of the will; the burden of proof is on you to show that the will is invalid based on one of the six grounds listed above.

Let’s look at each in turn.

Lack of testamentary intent or capacity

The testator must “be of sound mind” when executing the will for it to be valid.

The standard of “testamentary capacity” is not very high, however; it’s lower than the mental capacity required to sign a contract. All that’s required is that someone is aware that they are creating a will, what a will is, and what the will says.

Possible evidence for lack of capacity: You must show that the testator was not of sound mind and/or did not understand what they were signing at the time of executing the will. This could be video evidence, witness statements, healthcare records, or medical provider statements that demonstrate lack of capacity.

Revocation

A will that’s currently being probated by the court may be contested if there’s evidence that the testator planned to revoke or replace it.

Possible evidence for revocation: Evidence could include the existence of a newer, properly executed will, a valid codicil that revokes or changes terms of the will, or witness testimony.

Mistake

This broad category includes both mistakes in execution and mistakes in fact or intent.

Mistakes in execution includes things like not signing a formal will or a codicil in the presence of two witnesses, as required by law in South Carolina and many other states. (The exact requirements for validity depend on state law and on the type of will.)

Mistakes in fact or intent includes things like using the wrong name for an heir. In one example from our practice, a couple came in to create a will and named their two daughters as heirs to their estate. One child had been born a male, and the parents were insistent on using the child’s new chosen name rather than the legal name. This might seem like a small matter, but using a non-legal name could create grounds on which to contest the will in the future. In this situation, we advised the clients to use the child’s legal name and include “who goes by [New Name]” for clarity.

Possible evidence for mistake: Evidence for mistakes in fact or intent could include testimony or documentation that demonstrate the testator’s true intentions.

Fraud

A will may be contested on the grounds of fraud if one or more of the signatures was forged, if the testator was misled into signing a document believing it was something else other than a will, if a valid will was hidden or destroyed so a previous will would be probated in its place, and similar situations.

In our experience, the most common form of fraud occurs when the testator thinks they are signing Document A but are actually signing Document B. That’s why it’s important to take the time to read through what you are signing.

Possible evidence for fraud: It depends on the type of fraud suspected; evidence could include analyses from handwriting experts, witness testimony, or proof a more recent will was created and executed.

Duress

A valid will must be the product of the testator’s free will, and evidence of coercion can be grounds for contesting the will. If the testator created or changed the will under duress, such as blackmail, physical harm, or threat of harm, the will may be declared invalid.

Possible evidence for duress: Witness testimony, medical records indicating the testator’s vulnerability, and written communications between the testator and the individual coercing the testator are some types of evidence that can show duress. In cases of duress, the final will is often substantially different from the previous will, as well, which can serve to demonstrate the testator’s mindset.

Undue influence

Like a will created under duress, a will created under undue influence does not reflect the true intentions and wishes of the testator. But undue influence is more subtle than duress and often more difficult to prove.

Undue influence occurs when the testator is psychologically manipulated or pressured into redoing or making changes to the will, usually by someone close to the testator. This often (but not always) happens in conjunction with the trusted person isolating the testator or cutting him or her off from friends and family. It’s most common with older people who are more vulnerable physically and psychologically.

Possible evidence for undue influence: Proving a will is the result of undue influence is often challenging since undue influence happens “behind closed doors,” in the words of the South Carolina Court of Appeals. Evidence might include a final will which is substantially different from previous wills; proof that the testator’s behavior and habits have changed (e.g., the testator used to go out a lot but later stayed at home with a caregiver all day); records showing the testator used to communicate with friends and family regularly but then stopped and has lost contact with them; and witness testimony.

A successful case of contesting a will on the grounds of undue influence in South Carolina is Gunnells v Harkness, 2019, in which a daughter contested her mother’s will over undue influence from her brother. We examined this case in depth in a previous blog; read it here. It’s helpful to see exactly what kind of evidence – and how much – helps convince a court that undue influence has occurred.

Note: Don’t mistake unfair or unequal terms for undue influence. It’s not uncommon for parents to leave a larger inheritance to a child who has acted as caretaker in the final years, or for a testator to leave everything to the surviving spouse and nothing to the children. On their own, these terms do not indicate undue influence. Proving undue influence is challenging and requires a large amount of evidence that shows a clear pattern over time.

Other grounds

South Carolina Probate Code specifically lists six grounds for contesting the will. In addition, South Carolina courts may also invalidate specific provisions that violate public policy if, for example, a provision incites unlawful actions or is discriminatory.

Is Contesting the Will Worth It?

Contesting a will can be a lengthy, expensive, and contentious route, and sometimes it’s not worth it. (Read more about this in our blog on being disinherited, which you can read here.)

However, sometimes contesting the will is the right thing to do, especially if you believe the will does not accurately reflect the wishes of the deceased.

Get Help Creating or Contesting a Will in South Carolina

Gem McDowell has helped individuals and families in South Carolina for over 20 years with estate planning. Whether you need help creating, updating, or reviewing a will or estate plan, or need advice or assistance probating or contesting a will, he can help. Call Gem and his team at the Gem McDowell Law Group with offices in Myrtle Beach and Mount Pleasant, SC to schedule a free, initial consultation by calling 843-284-1021 today.