Valid or not valid? A will challenge is an all-or-nothing effort to disprove that a will meets all of the requirements discussed in this article. If even one piece is missing, the will is not valid, and either a prior will takes centre stage or intestacy rules to apply. The following explains what makes a will valid.
Why Would Someone Challenge a Will?
If someone stood to inherit under a prior will or through intestacy but does not inherit under a newer will, that person has an interest in bringing a will challenge. The same interest applies to someone whose inheritance shrinks but is not eliminated by a new will. More under a prior will or intestacy is better than less under a new will.
The following diagrams illustrate how invalidating a will can change what the beneficiaries of a deceased with no spouse or dependants and only two surviving adult children (one son and one daughter) would inherit. In this example, a will signed in 2018 provides 25% of the estate’s assets net liabilities to the son, with the residue to the daughter. In a 2005 will, the son gets 75% with the residue to the daughter. In intestacy, the son and daughter would inherit equally. The bolded text represents the outcome and strikethrough text represents an invalidated will.
If the 2018 will is valid:
Will signed in 2018 | → | Will signed in 2005 | → | Intestacy |
(Son 25% / Daughter 75%) | (Son 75% / Daughter 25%) | (Son 50% / Daughter 50%) |
This situation is clearly more advantageous to the daughter. Typically, new wills revoke all prior wills, so the 2005 will is revoked by the 2018 will. Since the 2018 will is valid, intestacy rules are not triggered.
If the 2018 will is invalid and the 2005 will is valid:
| → | Will signed in 2005 | → | Intestacy |
(Son 75% / Daughter 25%) | (Son 50% / Daughter 50%) |
This situation is preferable to the son, who now inherits more than his sister. If the estate is worth $500,000 after expenses and taxes, the difference is worth $250,000.
If none of the wills are valid:
| → | → | Intestacy | |
(Son 50% / Daughter 50%) |
If none of the wills are valid, the intestacy rules apply and the son and daughter inherit equally.