An individual contesting a will (sometimes called a "contestant") because of improper execution asserts that a will is invalid because it was not properly signed or otherwise executed under state law.
A contestant may show that a will was improperly executed by introducing evidence that the will’s execution does not conform to state law. A properly executed will generally must be written and signed by the testator and at least one, but usually two, witnesses. A will may only be signed by another person on behalf of the testator if the testator could not physically sign the will and instructed the signing individual to sign on their behalf. Depending on state law, an electronic will may have additional validity requirements. Witnesses to a will typically must be 18 years old or older, and state law may impose other requirements, such as a requirement that the witnesses were in the same room as the testator when all the parties signed the document. Many states prevent beneficiaries from signing a will as a witness. Some states also require that a will or a document proving a will be notarized.
Wills Forms: 50-State Resources
Justia provides a comprehensive 50-state survey on wills and applicable state laws, including each state’s execution requirements.
Evidence of Improper Execution
Evidence of improper execution may include evidence that the testator did not sign the will or did not obtain signatures from the proper number of witnesses. It may also include evidence that a witness did not meet all the requirements, such as evidence that a witness was underage at the time of signing or did not watch the testator sign the will.
However, contesting a will for improper execution may be especially difficult if a probate court has already accepted the will. A contestant may instead need to show that the will was improperly executed due to forgery of the signatures of the testator or witnesses. They may also attempt to show that a witness’ attestation was untruthful by using the testimony of signing witnesses or other witnesses familiar with the will’s execution. If the will was a holographic will, the contestant may allege that the will was not written in the testator’s handwriting. Testimony from a handwriting expert or lay witness familiar with the decedent’s handwriting may be helpful during a will contest based on improper execution.
The Difference Between Will Contests and Proof of Will Hearings
Before a will is admitted to probate, the probate court will hold a proof of will hearing to determine the validity of the will. Often, interested parties will have the opportunity to object to a will’s validity during a proof of will hearing and present evidence that the will was improperly executed. However, many states allow interested parties to contest a will’s validity a second time during a will contest. States that allow individuals to question the validity of a will during a proof of will hearing and again during a will contest are sometimes called "double contest" states because an individual has two chances to prove that the will is invalid.