The decedent's spouse may exercise a right of election against a will under specific circumstances. This right is generally enforceable if the decedent tries to completely disinherit his or her spouse. The will may be written to exclude the spouse, but state law (varies by state) has provisions to give a surviving spouse a minimum percentage of the estate assets. Assets subject to a right of election not only includes property in the estate at the time of death, but also property given away during life where the decedent retained incidents of ownership.
Contesting a will differs from right of election in that it tries to invalidate the will in its entirety. Interested parties (someone who stands to profit by overturning the will) may feel slighted or disappointed by the will in its current form. In response, during the probate process, interested parties may file an action to contest the will's validity.
Several reasons to contest a will:
- Improper execution - The will is missing a legal element that makes if valid. For example, the proper number of witnesses are not included in the document.
- The testator was not of sound mind (mental incapacity).
- The testator was forced or coerced to execute the will (under duress). This implies that someone tried to gain by manipulating the testator.
- The testator was defrauded or mislead to produce a fraudulent will.
- The will is an outright forgery. The will was not drafted by the testator or does not contain his signature.
- The will admitted to probate was previously revoked by the testator.
Several warning signs that the will may be successfully contested:
- A will conceived and possibly financed by a beneficiary.
- The heirs of a will differ greatly from prior wills
- A will that disinherits natural beneficiaries
- A will that disposes great wealth to non-lineal heirs.
- A will that was created without an attorney.
- A will executed by a mentally weak testator (subject to duress).
- A will with unusual dispositions to questionable beneficiaries.
In conclusion, a will may be partially or fully revoked by operation of law. The provisions of a will are not enforceable if the intended bequests are illegal.