When a person dies, a loved one sometimes discovers that the deceased person has disinherited them or reduced their estate share in the will. An Alabama resident who finds themselves in this situation can contest the validity of a will successfully if they can prove that the person who wrote it lacked the mental capacity to do so, did so under duress or undue influence, or fraud occurred during its creation. In anticipation of someone contesting a will, the person writing it, known as the testator, can add a no-contest clause that says anyone who challenges the will's validity will get disinherited.
Difference Between a Will and a Trust
A will dictates who receives what property from a decedent's estate, and the decedent can designate in their will an executor to fulfill their wishes. Most decedents leave behind assets just as real estate, cash and investments, tangible property and heirlooms. A will allows heirs faster and easier access to the estate and keeps the assets out of the hands of people who the decedent doesn't want to have them. Alabama law presumes that a deceased person's will is their final wish and intent.
A trust is a separate legal entity controlling the ownership and use of someone's property. This contractual agreement names a person or entity to manage the assets. A will does not control the decedent's assets after they pass – it just determines where they should go.
Testator's Mental Capacity Level
Testamentary capacity describes a person's ability to make a valid will. At signing, the testator must:
- Be over 18 years old.
- Understand they are making a will.
- Understand the will's effect.
- Understand the extent of their property.
- Have an awareness of the "natural objects of their bounty," meaning they must know who their closest relatives are.
- Voluntarily sign the will.
Anyone can create a will in Alabama, as long as they meet these requirements. A person who has mild dementia can still make a valid will, provided they are lucid at its creation. However, the lower an individual's level of cognition is, the greater the likelihood of success for someone contesting it based on a lack of testamentary capacity.
Grounds for Disputing a Will
In Alabama, only "interested parties" can contest a will. An interested party is a person who can potentially receive property under the will's terms.
These grounds may allow an interested party to contest a will:
- Disinherited spouse: Alabama allows surviving spouses to claim their right to a share of the decedent's estate, even if the deceased attempted to disinherit them.
- Mental incapacity: A will may be invalid if the testator is not of sound mind when making it.
- Fraud: An interested party may get a court to invalidate a will if they can prove fraud occurred during its creation.
- Duress and undue influence: A will created under coercion, duress, improper undue influence or force is not valid.
- Technical requirements: Minimum statutory requirements must apply to wills in Alabama. If the testator does not meet these requirements, the will may be invalid.
Contesting a Will in Alabama
A person can dispute a will for up to six months from its presentation to probate court. A minor or a legally disabled individual has up to 12 months to contest it from the date of their disability removal or from the date they become an adult. Until then, a guardian may contest the will on their behalf to enforce their rights.
A person contesting a will must submit their claim to the probate court in the county where the decedent passed away. They will have to pay a small fee to file the documents, which varies from county to county. For example, in Madison County, Alabama, the filing fee is $25.
Once the court schedules the hearing, the interested party may have to sit for a deposition, submit evidence of why they believe the will is invalid, or give testimony. The interested party should have documents that will prove their case.
Successful Will Contest by Family Members
If the contest is successful, the court can invalidate the challenged will and replace it with a previous version, distribute the decedent's assets under the state's intestacy laws, giving the assets to the closest living relatives.
In Alabama, intestate succession is as follows:
- If the deceased has children but no spouse, the children inherit the estate.
- If a spouse but no children, the spouse inherits the estate.
- If a spouse and children, the spouse gets $50,000, plus half the balance of the intestate property. The children get the remainder of the estate.
- If both a spouse and parents, the spouse gets $100,000, plus half the balance of the intestate property. The parents get the remainder of the estate.
- Parents inherit everything if there are no children or spouse.
- Siblings inherit everything if there is no spouse, parents or children.
No-contest Clause in a Will
When estate planning, a person who believes their will may face future challenges can add a no-contest clause. This clause states that an heir who challenges the will's validity will not get anything – in short, the decedent disinherits them. The reason for a no-contest clause is to discourage interested parties from contesting a will, but this clause is sometimes not enforceable. Alabama courts use discretion to determine whether or not the contest of a will is valid or frivolous.
While a no-contest clause could complicate contesting a will, it doesn't mean it is impossible. A person thinking of taking this action should consult an attorney to get a better idea of their options.
- Madison County Alabama: Probate Court Costs
- NOLO: Intestate Succession in Alabama
- Connect2Local: A Guide to Contesting a Will in Alabama
- Justia Law: 2006 Alabama Code Section 43-8-190 Who May Contest Will
- Five Points Law Group: How Do I Contest a Will?
- Five Points Law Group: What Is Capacity For Making a Will?
- Investopedia: Will vs. Trust: What’s the Difference?
Michelle Nati is an associate editor and writer who has reported on legal, criminal and government news for PasadenaNow.com and Complex Media. She holds a B.A. in Communications and English from Niagara University.