My dad’s will does not appear to say what I actually think he would have wanted, can I challenge the will?

A close family member recently passed away. During the probate proceedings it seemed as though the Will did not reflect any of the person’s actual wishes. Is there a way to challenge the validity of a Will?

It is important to note that if a Will is held to be “invalid” this does not mean that the person challenging the Will will receive all of the property of the deceased. Rather, if there is no previously executed Will that is valid, the property of the deceased will be distributed according to the state’s intestacy laws. Whenever a person dies without executing a will, the person is said to have died “intestate” and the intestacy laws govern. Therefore, if the Will is declared invalid, the court will treat the deceased’s property as if he had died intestate. (More information on intestacy and intestate laws will be described in a later article).

Under Utah law, in order to have a valid Will, the document in question must be signed by the person creating the Will (the “testator”) and the Will must be signed by two witnesses and the Will must be intended by the testator to be a Will.[1] There is no requirement that the Will be type written or hand written so long as it contains the three required signatures (the testator’s and two witnesses). If, however, a Will is hand written, and it is apparent that the hand writing is that of the testator, only the testator himself must sign the Will.[2] This is known as a “holographic will” and will be treated by courts as a valid Will (provided it does not fail for any of the reasons listed below).

The most common way to challenge a Will is to argue that the Will is “defective” in some way. This means that the Will did not comply with all of the technical requirements set out by the law. Therefore, if the testator did not sign the Will, or if there is only one witness signature on the Will (on a type written Will only), then the Will could be invalidated by the court.

The other ways by which a person may challenge the validity of the Will are much harder to prove and will oftentimes result in extensive litigation. These primary Will “challenges” include undue influence and lack of mental capacity.

Undue Influence

Undue influence occurs when a person who is in a position of trust and confidence with the testator exerts pressure and influence over the testator in drafting the Will. The person in a position of trust with the testator must exert enough influence so that the testator’s Will does not actually reflect what the testator wanted. This usually arises when the testator leaves most, if not all, of his assets to the confidant.

In cases where undue influence is alleged, if the person accused of exerting undue influence was in a position of trust and confidence with the testator, and this person advised the testator as to how his property should be administered, then there is a presumption that undue influence occurred.

If the challenger presents enough facts to meet the requirements of the presumption, the person in confidence with the testator then must produce evidence that there was no undue influence. This means that the confidant must show that he acted fairly with the testator, that he disclosed all material information to the testator; that he took no unfair advantage of his position

Lack of Mental Capacity

According to Utah law, a testator has testamentary capacity if “he is able to remember who were the natural objects of his bounty, recall to his mind his property, and make disposition of it understandingly, according to some purpose or plan formed in his mind.”[3] This means that when the testator is executing his Will, he is able to identify his closest living relatives, he knows what property and assets he owns, and he understands, and dictates, how his property is to be distributed. In determining whether a testator has the requisite testamentary capacity, courts do not treat mere eccentricities or lower than normal capacity as proof of a lack of testamentary capacity.[4]

[1] UCA § 75-2-502(1).

[2] UCA § 75-2-502(2).

[3] In re Swan’s Estate, 293 P.2d 682, 684 (Utah 1956)

[4] Id.

Michael Hepworth

Michael Hepworth

Managing Attorney at Hepworth & Associates
Michael is the Managing Attorney of Hepworth & Associates, LLC.
Michael Hepworth

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