Will Contest

In South Carolina a will contest is a lawsuit in Probate Court designed to invalidate a will. A last will and testament is a document in which a testator memorializes instructions as to how their estate should be handled once they pass away. When drafted and executed in a manner that is consistent with South Carolina law, a will is a legally enforceable document. SC Code § 62-2-502. When the decedent passes away, their last will and testament will be probated and its instructions will be carried out by the personal representative who is appointed by the Probate Court. However, if a family member or other interested party believes that the will does not truly reflect the wishes of the testator because of the circumstances surrounding its creation or execution, the person has the right to object to it by initiating a will contest.

Procedure for Contesting a Will in South Carolina

In order to contest a will in South Carolina, the objectant must have standing to do so by being an interested party. This means that only those who have a financial interest in the matter have the right to initiate a will contest. Beneficiaries, heirs, and beneficiaries of a prior will have standing.

To initiate the will contest the objectant must submit a summons and complaint to the same Probate Court presiding over the probate proceedings. The complaint must include the reasons for the objections. The reasons must be valid legal grounds such as a lack of testamentary capacity, undue influence, or improper execution. Initiating the will contest also puts interested parties on notice of the objection. SC Code § 62-3-404.

Lack of testamentary capacity. South Carolina law requires that a testator not have been mentally incompetent at the time they executed the will. If there is evidence that they were incompetent, the will would be invalid.
Undue influence. Undue influence occurs when a testator was illegally influenced into executing a will they would not have other made. See Gunnells v. Harkness, No. 2017-001131, 2020 WL 1542114 (S.C. Ct. App. Apr. 1, 2020)
Improper execution. A will can be contested on the grounds that it was not properly drafted and executed in accordance with the requirements of South Carolina law.
Duress. If the testator was forced to make a will due to actual violence or threats, the will would not be valid.

Consequences of a Will Contest in South Carolina

If a will is determined to be invalid and there is not a prior or later valid will, the decedent’s estate would be distributed according to South Carolina’s law of intestate succession. For example, under the law if the decedent was survived by a spouse, but did not have any children, the surviving spouse would inherit the entire estate. If the decedent was survived by children, but no spouse, the children would inherit the entire estate, divided equally. If the decedent has both a surviving spouse and children, then the surviving spouse would inherit 50% of the estate and the children would share in the other 50%. SC Code § 62-2-102.

In the absence of children or a surviving spouse, the decedent’s parents would be entitled to inherit. Next in line would be the decedent’s siblings. The statute provided details as to who would be entitled to inherit based on which relatives survive the decedent. SC Code § 62-2-103

Penalty Clause for Contest

A “penalty clause,” also referred to as an “in terrorem clause,” is a provision in a will that results in a forfeiture by a beneficiary if the beneficiary contests the will. The purpose of penalty clauses is to discourage beneficiaries from tying up a will in costly litigation and circumventing the goals of the testator as expressed in the will. In South Carolina forfeiture clauses in wills are generally enforceable unless there is probable cause for the will contest. SC Code § 62-3-905.