Thomas McCutcheon

The most common reasons for contesting a Will are undue influence, lack of mental capacity to make a Will or the improper execution of a Will.

If one of these is proven the Will in question is set aside as if it never existed.

On March 15, 2019, the Alabama Supreme Court decided Jones v. Brewster which gives a checklist for Will contest cases. This is the “go to” case for lawyers who want to file a Will contest.

This case details and explains the applicable Alabama code sections and the procedure for filing a Will contest. One important point is the strict time limit. If the decision to contest a Will is made, there is a very strict time limit, potentially six months.

Undue influence occurs when someone with influence uses that influence to cause a person to make a Will different, if not influenced, than they would have made.

A properly executed Will is one signed in front of two witnesses, who then also sign the Will as witnesses. We don’t often see these cases because all lawyers now provide what’s known as a self-proving Will. That is a Will, signed by the “testator” in the presence of two witnesses and then notarized. That’s not to say that a Will like that couldn’t be invalid, but it is likely properly executed.

The mental capacity required to make a Will means that a person has sufficient mind and memory to know what property they are giving in the Will, the people to whom they are giving it, and that they are signing a Will.

Will contests are odd and the rules are strict. Some contests are filed one way in some counties and differently in others. This is one of the few types of cases where the loser can end up responsible for the cost to defend the Will.

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