What are Grounds for Contesting a Will in South Carolina?

Like every state, there are various grounds for contesting a will in South Carolina. It is important to understand these arguments, regardless of which side of the issue you may find yourself on in the future. In order to prepare your estate properly or to challenge a will you feel is inappropriate, you will need to know the grounds for contesting a will in South Carolina.

Some states do have a "no-contest" clause, which, when enforced, prevents anyone from contesting the document. Beneficiaries must accept the will as written or getting nothing at all. Under South Carolina law, a no-contest clause is unenforceable if the challenger has probable cause for instituting procedures. The probable causes, or grounds, include establishing undue influence, fraud, duress, mistake, revocation or lack of testamentary intent or capacity.

The first requirement for contesting a will in South Carolina, is the challenger must have a connection to the will and be harmed by its contents. To challenge a will you either need to be a beneficiary and feel your inheritance should have been different or believe you should have been named a beneficiary but were not named as one. Once it has been established you have standing, you must prove one of the valid causes for contesting the will.

Valid Causes for Contesting a Will

1. Undue Influence and Duress - Undue influence and duress are very similar terms. This is when a person the estate owner or "testator" knows and trusts tries to persuade the testator to make a will that benefits them. The will must be the wishes of the person who creates the will, not the wishes of the beneficiary.

2. Fraud - when the testator makes a decision about the will based on false information that made them change their mind about the will, it is fraud. If the person writing the will were turned against someone who would normally have been named in the will because of false information, that person would have grounds to contest the will based on fraud. Deceit is generally a factor in fraud.

3. Mistake - Mistakes happen and sometimes they can provide grounds for contesting a will. If the person making the will is under a mistaken belief of fact, if the testator is mistaken in believing something as factual, that type of mistake will generally not invalidate a will. However, if a will is signed by mistake or if it can be proven that they did not intend to include certain things in the will, these mistakes can provide grounds to challenge a will.

4. Revocation- Revocation can be grounds for contesting a will in South Carolina when a beneficiary can show that a subsequent will was made and the one being presented for probate was thought to be destroyed by the testator.

5. Lack of testamentary intent or capacity- If a will is contested for lack of testamentary intent or capacity, it is based on the allegations that the deceased person was not of "sound mind" when the made the decisions in the will. One of the main reasons a will must be signed and witnessed by at least two people over the age of 18 is to avoid these allegations.

Contesting a will in South Carolina must be done by a beneficiary or someone who believes they should be entitled to some type of inheritance from the estate. Whenever someone decides to challenge a will, there are specific procedures that must be followed. Before contesting a will in South Carolina, it is wise to contact a lawyer with experience in probate law.



Founded in 1985 in Anderson, SC, by C. Thomas Cofield, III, Cofield Law Firm was reopened in Lexington, SC, in 2002 by Thomas C. "Tommy" Cofield and Amy V. Cofield, children of the original founder. The firm provides legal services in areas including personal injury litigation, construction law, probate law and mediation. For more information, please contact http://www.cofieldlaw.com.