Typically, standing to contest the validity of a Will is limited to two classes of persons:
1) a person who is named on the face of the Will (i.e. any beneficiary); and 2) a person who would inherit from the testator if the Will was invalid.
The most common grounds, or reasons, for contesting a Will are:
- Undue influence – is an equitable doctrine, which involves one person taking advantage of a position of power over another person. In such cases, free will to bargain is not possible.
- Election against the Will by a widowed spouse or orphaned children
- Fraud – a deception made for personal gain or to damage another individual
- Insane delusion
- Testamentary capacity (same as a lack of disposing mind and memory) – in the common law tradition, testamentary capacity is the legal term used to describe a person’s legal and mental ability to make a valid Will. This concept has also been called sound mind and memory.
Adults are presumed to have the ability to make a will. Litigation about testamentary capacity typically revolves around charges that the testator, by virtue of senility, dementia, insanity, or other unsoundness of mind, lacked the mental capacity to make a will. In essence, the doctrine requires those who would challenge a validly executed will to demonstrate that the testator did not know the consequence of his conduct when he executed the will.
Certain people, such as minors, are conclusively deemed incapable of making a will by the common law; however, minors who serve in the military are conceded the right to make a will by statute in many jurisdictions.