Berk & Moskowitz, P.C.

14220 N. Northsight Boulevard
Scottsdale, AZ 85260
United States
Phone: (480) 607-7900
Fax: (480) 607-7300

Will Contests

If there are questions about the validity of the will, an heir or other interested person may file a will contest. A will contest may be filed where the person did not have testamentary capacity (was of unsound mind) or was unduly influenced. A contest may also be filed if the will does not comply with Arizona law. A will may also be challenged if it is not authentic or was forged.

Arizona law recognizes three different types of Wills. Most importantly, a will must be signed and must represent the true wishes of the person. In other words, the person must have been of sound mind and not have been unduly influenced or directed what to put in the will by another person.

Arizona law generally provides that there is a presumption of testamentary capacity (that the person is competent and has sound mind). Thus, the person attacking or trying to cancel a Will bears the burden of proving lack of capacity before the proponent (the party trying to enforce the Will) has any burden.

Grounds for a Will Contest or Challenge

Whether you are the party challenging or attempting to uphold a Will or other document, it is important to understand the rules. In Arizona, a Will may be set-aside (canceled) when (a) there was testamentary incapacity (read more below); (b) undue influence; (c) misconduct involving a vulnerable or incapacitated adult; or (d) the will was forged. Similar rules may apply to trusts, deeds and other transfers of property.

Testamentary Capacity

In order to set aside a Will on the ground of testamentary incapacity, the contestant (person attacking or trying to set-aside the Will) is required to show that the Will was a product of permanent insanity or insane delusions that were of the nature and were severe enough to where:

  • He or she did not know and understand the nature of the document: the person did not know he/she was signing a Will that would transfer his/her property at death;
  • He or she did not know the nature and extent of his/her property: the person did not know what property and assets he/she owned or how much money he/she had; and
  • He or she did not know the natural objects of his/her bounty at the time that the Will was executed: he/she did not know who his/her family was.

Not every mental departure from normal will destroy a testamentary disposition (a will) that is otherwise valid. Thus, even assuming that the testator was suffering from a deteriorating mental condition, or that his/her old age was accompanied by physical infirmities, poor memory or mental slowness (i.e. mild underlying dementia), this is generally not legally sufficient to show lack of testamentary capacity. For example, in Estate of Green, the Arizona Supreme Court explained the nature of the mental condition necessary for incapacity as follows:

Mental derangement sufficient to invalidate a will must be insanity in one of two forms: (1) [i]nsanity of such broad character as to establish mental incompetency generally; or (2) some specific narrower form of insanity under which the testator is the victim of some hallucination or delusion. Even in the latter class of cases, it is not sufficient merely to establish that a testator was the victim so some hallucination or delusion. The evidence must establish that the will itself was the creature or product of such hallucination or delusion . . .

In subsequent cases, the Arizona courts have further explained the standard by holding that a testator has sufficient testamentary capacity if he is merely capable of: (1) understanding that the instrument disposes of his property at death; (2) knowing the general nature and character of his property; and (3) knowing the natural objects of his bounty (i.e. the family members that logically would inherit his property) and understands the relationship to them.

Contact our Experienced Probate Attorneys

While the above standards appear high, it is not impossible to set aside a Will based on lack of testamentary capacity. Our Scottsdale, Arizona probate lawyers will work with medical professionals, such as neuropsychologists, to review medical records, interview witnesses, and perform psychological examinations in order to determine whether the person lacks or lacked testamentary capacity.

Please contact our aggressive probate attorneys if you think that a Will or codicil (an amendment to a Will), trust, or other transfer was signed when the person lacked testamentary capacity.

Our attorneys have extensive experience resolving virtually all types of will contest disputes and lawsuits, as well as other legal disputes over inheritances, probate and estates. We are here to help if you have a legal matter involving a Will, a Trust or other inheritance or property dispute.