Our Birmingham probate attorneys have experience preparing wills, probating wills, and even defending or attacking wills in will contest actions. A will contest is a lawsuit filed with the Circuit Court challenging a will that has been admitted to probate in the probate court.
In order for a will to be valid, it has to be validly executed, which means it has to be in writing and signed by the deceased in the presence of two witnesses. Additionally, if the witnesses signatures are notarized with a notary seal, then the will is “self proving” meaning it is presumed to have been executed validly. However, even if a will is not “self proving”, that does not mean it is unenforceable. It simply means there is no presumption of valid execution, and valid execution must be proven through other evidence.
However, just because the will was validly executed, that does not mean it will survive a will contest. Wills must also be validly executed by someone who has “testamentary capacity.” In other words, the person signing the will must know what they are doing. Ways to show the testator did not have proper capacity at the time they signed the will, include obtaining copies of their medical records to show they were being treated for mental illness, dementia, or some other infirmity of the mind. Evidence can also be presented of witnesses that interacted with the testator near the time of the will execution who can testify of the testator’s lack of mental ability.
Wills are also contested on the basis of fraud. The most common example of this type of will contest includes allegations that the will at issue was not created or signed by the purported testator. In other words, wills can be contested if it is believed that the will is a fraud, and has been forged.
One of the most common forms of will contest seen by our probate attorneys in Alabama involves allegations of undue influence. Commonly, elderly parents are cared for by one child, who lives near the parent, and whose schedule allows them to spend time with the parent. It is not unusual for that parent to show appreciation to that child by preparing a will that gives the care taking child a larger portion of the parent’s estate than other children, and may even give them the entire estate. In such situations, the non care taking children often become suspicious of the caretaker’s influence on the parent in creating the will and may contest the terms of the will.
If a will is successfully contested, the testators estate will either be distributed through the Alabama laws of intestacy, or through a prior valid will.
If you are involved in litigation over a will in Alabama, contact one of our Birmingham probate attorneys at Parkman White, LLP to assist you and guide you through the will contest procedure.