If you have lost a loved one and believe you are being denied your rights as an heir, there are a number of potential ways to ensure that you receive the inheritance to which you are entitled. Challenging the enforceability of your family member’s will is one possibility; and, depending on the circumstances, you may have options even if his or her will is legally enforceable under South Carolina law.

Before we get into our discussion, it is worth clarifying some terminology. Although they are often used interchangeably, the terms “heir” and “beneficiary” have distinct meanings. An heir is a person who is entitled to a portion of a decedent’s estate under the laws of intestate succession. This would be the case if the decedent did not leave a will, or if his or her will does not address all estate assets. In contrast, a beneficiary is a person who is specifically named to receive a portion of the decedent’s estate in a will or trust. An heir can also be a named beneficiary; however, if an heir is excluded from a person’s estate plan, then the will takes precedence over the laws of intestate succession.

Six Ways to Challenge the Enforceability of a Will in South Carolina

If you are an heir and you are seeking to file a will contest in order to enforce your inheritance rights, you have six primary options. The grounds for seeking to invalidate a will in South Carolina include:

1. Lack of Testamentary Capacity

At the time a person signs his or her will, the person (referred to as a “testator”) must have what is known as “testamentary capacity.” In layman’s terms, this means that the person must be of sound mind, and he or she must be capable of making reasoned decisions regarding the distribution of his or her estate. The South Carolina courts consider three factors when assessing testamentary capacity. A person will be considered to lack testamentary capacity if he or she does not understand:

  • The nature and extent of his or her assets;
  • The “object of [his or her] bounty”; or,
  • How he or she wants these assets to transfer at the time of death.

2. Undue Influence

A will is invalid if it was prepared or signed under undue influence. The classic scenario of undue influence involves a caretaker convincing an elderly testator to create or change the terms of his or her will in order to provide a substantial bequest to the caretaker. However, there are numerous other circumstances in which undue influence can exist as well. Factors considered when assessing whether a will was signed under the undue influence include the testator’s age, mental condition, overall health, dependence on the influencer, access to family members, and relationship with his or her named beneficiaries. Revising a will in order to provide a substantial gift to someone who was not previously named in the will can also be indicative of undue influence.

3. Duress

Duress is similar to undue influence but involves the execution of a will under threat rather than under the influence of someone who is trying to win the testator’s favor. Challenging a will based on duress is also different from challenging a will based on undue influence in that it is not necessary to show that the testator was unaware of the circumstances surrounding the execution of his or her will. In order to prove that a testator signed his or her will under duress, an heir must show that: (i) the testator was threatened, and (ii) the testator believed that the person who made the threat was willing and able to commit the threatened act.

4. Forgery

In order to be enforceable, a will must be, “signed by the testator or signed in the testator’s name by some other individual in the testator’s presence and by the testator’s direction.” Any other signature is considered a forgery and renders the will unenforceable.

5. Failure to Meet Legal Requirements

A will can also be deemed invalid in South Carolina if it does not meet any of the other basic requirements for enforceability. These requirements include:

  • The will must be in writing (either in the form of a stand-alone document or a will accompanied by a separate list of assets to be distributed at the time of death); and,
  • The will must be executed in the presence of at least two individuals who, “witnessed either the signing[of the will] or the testator’s acknowledgment of the signature or of the will.”

6. Subsequent Will or Revocation

A will that is either replaced by a subsequent will or that is revoked by the testator is no longer valid. Oftentimes, family members will have access to an old version of a testator’s will and will be unaware that the version that they have has been revoked or replaced. When seeking to challenge a will based on the existence of a newer version, it is necessary to show that the newer version meets the legal requirements discussed above and that it was not executed under undue influence or duress.

An Alternative: Challenging the Personal Representative’s Conduct During Probate Administration

In some cases, it may not be necessary (or possible) to challenge the enforceability of the will itself. Instead, heirs may be able to protect their interests by challenging the personal representative’s conduct during probate. For example, if the personal representative fails to adequately preserve estate assets, or if the personal representative distributes assets to named beneficiaries without giving due to consideration to the rights of heirs not named in the will, then the heirs may have grounds to take legal action against the personal representative. Learn more about the rights and duties of personal representatives in South Carolina.

Speak with Summerville, SC Probate Lawyer Patrick R. Watts

Do you have questions about your legal rights as an heir in South Carolina? Do you need to take legal action in order to protect your share of a loved one’s estate? To speak with Summerville, SC probate lawyer Patrick R. Watts in confidence, call us at 843-851-7050 or request an appointment online today.