The Grounds (and Hurdles) for Challenging a Will

In a will contest, a contestant challenges a will as invalid, usually for mental incapacity, undue influence, fraud, or a technical failure. Although somewhat of a rare occurrence and a tedious process, a will contest may be the only recourse for a client who has been disinherited or disenfranchised. First, only an interested party who has a potential interest to gain can challenge a will. A will can be invalidated in part or in whole. If a will contest is successful, the probate or circuit judge has options such as invalidating the challenged will, reinstating a previous version, or distributing property under the laws of intestacy. Beyond the hurdles of a will contest, the testator (the person who signed the will) sometimes inserts a “no-contest” provision into their will or trust. Under such a provision, the testator instructs that anyone who contests the validity of their will is disinherited. While these clauses create additional difficulties for one contesting a will, it is not always an absolute bar to the challenge. It would be a good idea for the client to consult an attorney to weigh their options and get a better assessment of their rights before challenging or contesting a will.

An interested party cannot challenge a will simply for being unfair. Instead, they must prove one of the following conditions or other good cause:

Mental Incapacity

In order for a will to be valid, the testator, or maker of the will, must have testamentary capacity. When challenging a will for lack of mental capacity, the contestant must show the maker of the will was not lucid at the time the will was made. In other words, the testator did not understand what was going on. The testator must know who they are, what they have, and who their people are. Even if a person shows signs of decline or memory loss, they may still have testamentary capacity.

The court presumes a testator has mental capacity at the time the will was made. To overcome this presumption, the will challenger must show why the testator lacked capacity. For example, the challenger may show the testator lacked testamentary capacity due to senility, dementia, Alzheimer’s, insanity, or even substance abuse.

Undue Influence

Another common basis for a will contest is undue influence. When someone who benefits under the contested will can be shown to have exercised undue influence over the testator, the will may be invalidated. In this scenario, a caretaker, significant other, or other person close to the testator exerted influence over the testator to extent that the testator changed their way of thinking or acting. In essence, that person is manipulating the testator into changing their will for their benefit.

Imagine you and your father have always had a good relationship, and you stood to receive his entire estate as his only son under what you thought was his current will. However, upon his death, you learn that your father recently authored a new will leaving his estate to the caretaker who helped him for the last six months of his life. Under this hypothetical, it is possible that he was subject to some sort of influence that except for the influence, he would not have changed his will. If you bring a contest and can prove that your father was unduly influenced, the will may be thrown out.


To establish fraud in a will challenge, the interested party must show fraud in the execution of the will or fraud in the inducement. Fraud in the execution involves the testator being tricked into signing, whereas, fraud in the inducement involves misinformation that caused the testator to sign the will. If the testator signs the will thinking it’s a different document, perhaps believing it’s a power of attorney, the will may be successfully challenged. Alternatively, if the testator is lied to in a way that causes them to sign the will, the will may also be invalid. A fraudulent will could also include one that has been forged. The law requires intent for a case for fraud, making it especially difficult to prove.

Legal Technicalities

Finally, a will can be challenged for technical failures. Like every other state, Alabama law requires several procedural requirements in order for a will to be valid. In most instances, the will must be typed and witnessed by at least two people who do not have an interest in the will. Although a will does not necessarily have to be notarized or use the typical legal jargon, these factors can weigh on the validity of the will.

The law does allow for a holographic, or handwritten, will in some circumstances. However, additional requirements apply. If the will fails for a technicality, such as improper witnessing, the will can be contested. These stringent requirements underscore the need for careful estate planning with the help of an experienced attorney. Although online DIY will templates may seem efficient and satisfactory, they can cause problems down the road, unbeknownst to the testator.


If you believe a loved one created a will late in life that should be invalidated by the courts, consider contacting an experienced attorney today to explore your legal options. Alternatively, if you are the personal representative or executor of an estate where the validity of the will is being challenged, the estate likely will also need legal counsel.