Who Can Challenge a Will? Is Your Will at Risk?

A well drafted will is meant to protect your wishes and provide clarity for your loved ones. But not every will passes through probate unscathed. There are certain cases when a will can be challenged in court by family members, creditors, or other interested parties. Whether you’re concerned that your estate plan could be contested, or you’re wondering if you have grounds to dispute a will yourself, consider speaking with our experienced attorneys for wills in Wilmington, Myrtle Beach, and all of the surrounding areas. At Bespoke Estate Law, we would be happy to provide you with guidance.

Who Can Challenge a Will in NC or SC?

Only Interested Parties Have Standing

A will contest is not open to the public. In order to bring a challenge, the person filing must have legal standing. This means they must be directly affected by the outcome of the case. Most challengers fall into one of three categories: heirs who would inherit under state law if the will were invalidated, beneficiaries of an earlier will who were excluded or minimized, or creditors who believe they are owed money.

Examples of Interested Parties

A child who was disinherited may have legal standing if they were named in a prior will. A charitable organization cut out of a revised will might also qualify. In contrast, neighbors, friends, or caregivers who were never included in any estate planning documents generally do not qualify to bring a challenge.

Legal Grounds for Contesting a Will

Lack of Testamentary Capacity

To sign a valid will, the person (known as the testator) must understand the nature of the document, the value of their property, and the identities of their likely heirs. If a person suffered from advanced dementia, delirium, or another condition that affected their thinking, the will may be subject to challenge based on lack of capacity. This concept is referred to as testamentary capacity.

Contesting For Undue Influence

Undue influence occurs when a person manipulates or pressures the testator into making decisions they would not have made on their own. This is especially common when the influencer has a close and controlling relationship with the testator. The court will consider factors such as isolation, dependency, and changes to longstanding estate plans.

Accusations of Fraud or Forgery

A will may be considered invalid if it was signed under false pretenses or if the signature was forged. This might include situations where someone tricked the testator into signing a will by misrepresenting what the document said. Evidence of document tampering or forged signatures can be used to support a fraud claim.

Improper Execution of the Will

Each state has specific rules about how a will must be signed. In both North Carolina and South Carolina, the document must be in writing, signed by the testator, and witnessed by two disinterested individuals. A disinterested witness is someone who does not stand to benefit under the will. If these requirements are not followed, the will may be found invalid even if it reflects the testator’s intentions.

How the Process Works

Probate Filing and Legal Dispute

When a will is submitted to probate, the court notifies all interested parties. If someone objects to the will’s validity, they must file a formal claim. This begins a contested probate proceeding in which both sides can present evidence.

What Happens During a Will Contest?

The court may review medical records, hear testimony from witnesses, and examine any prior versions of the will. In some cases, expert witnesses such as handwriting analysts or physicians may be asked to weigh in. The process may take several months or longer, depending on the complexity of the case. If you become involved in a contested will, you may need the assistance of a probate attorney.

What Happens if the Will Is Found Invalid?

The Court May Rely on a Previous Will

If a prior will is available and still valid, the court may use it to distribute the estate. If there is no earlier will, the estate passes according to intestacy laws.

Intestate Succession in North Carolina and South Carolina

South Carolina law, under S.C. Code § 62-2-102, provides that the surviving spouse and children inherit when no valid will exists. North Carolina law, outlined in Chapter 29 of the General Statutes, follows a similar structure. If no immediate family survives, more distant relatives may be entitled to inherit.

Reducing the Risk of a Will Challenge

Work With a Qualified Attorney

The most effective way to protect a will from future disputes is to create one with the help of an experienced estate planning attorney. Legal counsel can help you satisfy all procedural requirements and advise you on how to avoid common red flags.

Be Strategic About Changes

Major changes to an estate plan (such as disinheriting a child or leaving everything to a new spouse) should be handled carefully. In some cases, it may be helpful to document your reasoning or include a statement of intent. Your estate attorney can also advise you on whether to use tools such as no-contest clauses or medical evaluations to support the validity of the document.

Speak With an Experienced Attorney

At Bespoke Estate Law, we help individuals and families create valid, enforceable estate plans and resolve disputes when wills are contested. Whether you are planning your own estate or believe a loved one’s will may not reflect their true wishes, we invite you to contact our Wilmington, NC estate planning law firm. We work with clients across coastal South Carolina as well as North Carolina and would be glad to speak with you about your options.