Will Contest

I will, if properly executed, is a legally enforceable document that instructs how the testator’s estate is to be disposed of upon their death. North Dakota law has strict requirements about how a will is to be executed and the requirements for a will to be valid. If someone has evidence that the will is not valid, the process they must follow to challenge the will in an effort to prevent it from being probated is called a will contest.

Who Can Initiate a Will Contest

Under North Dakota law, as with any probate dispute, only interested parties have the legal standing to contest a will. “Interested person” is defined as someone who has a financial or enforceable interest that would be impacted by the probate of the submitted will. Generally interested parties are limited to beneficiaries of the will that was submitted, beneficiaries of a prior or later will, and the decedent’s intestate heirs. In some instances creditors may also have standing to contest a will.

Initiating a Will Contest

To initiate a will contest, the objectant must submit their objections in writing. The burden is on the objectant to establish the invalidity of the will by showing evidence of lack of testamentary capacity, undue influence, fraud, duress, or revocation.

Grounds for Contesting a Will

The law does not allow an objectant to challenge a will simply because they were disinherited or were otherwise surprised or angry with its terms. In their pleadings, the objectant must allege legally acceptable grounds for the challenge.

  • Lack of testamentary capacity. North Dakota law requires that a testator must have been an adult and must have been “of sound mind” at the time that they executed the will. In other words, the testator must not have been suffering from a condition that impacted their mental competence. N.D.C.C. § 30.1-08-01
  • Undue influence. While it is common and legal to ask a testator to be included in their will, it is illegal to manipulate them into doing so. If someone takes advantage of the vulnerability of a testator in order to manipulate them into being included in their will or to otherwise insert their wishes into the testator’s will, the will would not be valid. This is referred to as undue influence and, if proven, is grounds for invalidating a will.
  • Fraud. To be valid, a will cannot be based on willful misrepresentations made to the testator. If such misrepresentations are related to a material fact and resulted in the testator making provisions in the will that they would not have made had they been given accurate information, the will would be fraudulent and invalid. Also, if the signature of the decedent was forged, the will would be fraudulent.
  • Duress. If the testator made the will because someone threatened them to do so, the will would be invalid.
  • Revocation. If the will was revoked, then it is no longer valid. For example, if the objectant produces a will that was executed later than the will that was submitted, then the submitted will would have been revoked and invalid. A properly executed will revokes a prior will.

Consequences of a Will Contest

If the will contest is successful and the court finds that the will should not be probated, the estate would be intestate. As a result, North Dakota’s law of intestate succession comes into play. N.D.C.C. § 30.1-04-01. Under intestate succession, the decedent’s next of kin would be entitled to inherit the decedent’s entire probate estate. The law describes how to determine who is the next of kin, starting with the decedent’s surviving spouse and children, if any. N.D.C.C. § 30.1-04-02.

Penalty Clause

A “penalty clause” is a provision in a will that results in a forfeiture by a beneficiary of their testamentary gift if the beneficiary contests the will. Such provisions are also referred to as “no contest” or “in terrorem” clauses. In North Dakota penalty clauses are unenforceable if there is probable cause for the will contest. N.D.C.C. § 30.1-20-05

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