Every will is subject to the scrutiny of the probate court. Probate is a public proceeding that requires giving notice to all potential heirs of decedent, whether or not they are named as will beneficiaries. Contests often arise when heirs believe that the will is to some degree invalid. There are multiple grounds on which a will might be contested. It is prudent to anticipate possible contests and to take steps to avert them.

A will has a stronger chance of withstanding legal challenges if it meets the following standards:

  • Proper execution — The will must be signed and witnessed according to state law. In West Virginia, the will must be in writing and signed by the testator or by some other person in the testator’s presence and by his or her direction. The signing must take place before at least two competent witnesses who are present at the same time and who sign the will in the testator’s presence.
  • Testamentary capacity — The testator must at least 18 years of age and must have the mental capacity to understand the nature of their actions, comprehend the property they own and form rational decisions about its distribution. This can be proved by affidavits from healthcare providers and others with direct knowledge of the testator’s mental state, as long as they do not stand to benefit from the will.
  • Proof of free intent — There should be independent proof that there was no undue influence, fraud or duress behind the making of the will. This can be done by affidavits of disinterested parties or can take the form of a video recording in which the testator explains the circumstances of the will’s creation.
  • Clarity and completeness — The will should be written in unambiguous and noncontradictory terms, identifying all beneficiaries and describing their shares of the estate. It should include provisions for what happens to a beneficiary’s share if they are unable to receive it. It should also set out procedures for naming guardians, substitute executors and trustees as necessary.

You might also consider a no-contest clause. This is a provision that imposes a penalty on an individual who challenges the will, such as forfeiture of any share of the estate. The purpose of the clause is to discourage disputes among heirs and to promote a smooth transition of property. West Virginia recognizes no-contest clauses but their enforceability depends on the circumstances. Generally, if the contest is based on a good-faith belief that the will is invalid, the clause will not be enforced.

An experienced wills and probate attorney can improve your will’s resistance to challenges by ensuring compliance with legal requirements, addressing potential complications and drafting the document accurately and comprehensively.

Pullin, Fowler, Flanagan, Brown & Poe in Charleston drafts wills and provides probate representation for clients throughout West Virginia. To consult with a knowledgeable attorney, call 304-344-0100 or contact us online. We have offices in Charleston, Morgantown Beckley and Martinsburg.