A last will and testament is a document in which a decedent expresses their wishes for what should happen to their property when they pass away. Testators make wills with the understanding that their wishes will be followed. The process of making a will and of probating a will includes many safeguards to make sure that the document accepted to probate does in fact memorialize the last wishes of the testator. If there are questions about the validity of the will, those questions can be sorted out by a judge in a proceeding called a will contest. A will contest can be initiate after a will has been admitted to probate.
Standing to Contest a Will
In order to contest a will, the objectant must have legal standing. This means that the objectant must have a justiciable interest in the matter. Generally, only beneficiaries, beneficiaries of prior or later wills, and intestate heirs have standing. Creditors may also have standing.
Procedure for contesting a will
To initiate a will contest, the objectant must file a petition with the District Court where the will was submitted within 3 months of when it was proved. The personal representative is responsible for defending the will throughout the litigation.
Grounds for Contesting a Will
Under Oklahoma law, reasons for contesting a will include:
- Incompetency. In order to make a will in Oklahoma, the testator must have been of “sound mind.” This means that at the time the testator made the will, the testator must have been mentally competent. Evidence of incompetency would invalidate the will. 84 OK Stat §8441
- Duress. For a will to be valid, the testator must have made it out of their own free will. If the testator was threatened into making a will or if violence was used against them, the will would not be valid.
- Forgery or fraud. If the will was forged, or if someone intentionally gave the testator false information that caused them to change the terms of the will, the will would be fraudulent and invalid.
- Undue influence. If a person who was in a position of trust with respect to a vulnerable testator used that position to manipulate the testator into making a will that the testator would not otherwise make, the will would be invalid.
- Later valid will. If the will that was submitted had been revoked by the execution of a later will, then the older will would be invalid.
58 OK Stat §58-61
Consequences of a Will Contest
If the will contest is unsuccessful, then the administration process will move forward and the estate assets will be distributed according to the terms of the submitted will. If a will contest is successful, the court will declare the will to be invalid. If there is another will, either a prior will or a later will that is valid, then that will would be probated. If not, the decedent’s estate will be intestate and its assets distributed according the Oklahoma’s law of intestate succession. 84 OK Stat §84213
Instead of the decedent’s property going to the people or entities specified in the will, the law makes sure that the decedent’s family is provided for, starting with their surviving spouses and children, if any. In the absence of a spouse our children, the law specifies the relatives who are entitled to inherit. Under intestate succession, non-relative friends and institutions would not be eligible to inherit.
In Terrorem Clause
An “in terrorem clause” which is also referred to as a “penalty clause” or a “no contest clause” is a provision in a will that makes testamentary gifts conditioned on the recipient agreeing not to challenge the validity of the will. The purpose of such clauses is to discourage beneficiaries from ensnaring the estate in expensive and time-consuming litigation in an attempt to thwart the testator’s wishes by attempting to invalidate the will. As noted in Barr v. Dawson, 158 P.3d 1073 (2006), in Oklahoma the “validity of no contest or ‘in terrorem’ clauses attached to wills has long been recognized.”