How Do You Contest a Will In Oklahoma?

The most common grounds to contest a will under Oklahoma law are:

  1. Undue influence
  2. Lack of testamentary capacity
  3. Lack of testamentary formalities
  4. Duress, Menace, and Fraud
  5. Revocation

 

Often, many of these grounds to contest a will are brought together in one action challenging the validity of the will in Oklahoma probate court.

Contest a Will In Oklahoma Based On Undue Influence

“A will or part of a will procured to be made by duress, menace, fraud or undue influence, may be denied probate.”  84 OK Stat. § 84-43.

Undue influence is wrongful influence, and  is one of the most common grounds to contest a will under Oklahoma law.  The elements of undue influence are set forth in Oklahoma Statutes § 15-61, which states:

Undue influence consists:

  1. In the use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him.
  2. In taking an unfair advantage of another’s weakness of mind; or,
  3. In taking a grossly oppressive and unfair advantage of another’s necessities or distress.

 

Undue influence is often alleged when a decedent has been isolated by someone, perhaps a child or caregiver, and kept away from family and friends that the decedent used to spend time with.  The bad actor perhaps poisons the testator’s mind against the testator’s family, and eventually unduly influences and actively procures a new will.  Usually, the new will is procured when the decedent is old, frail, and has diminished capacity.

Upon a finding by the trial court (1) that a confidential relationship existed between the will maker and another, stronger party and (2) that the stronger party actively assisted in the preparation of procurement of the will, a rebuttable presumption of undue influence at once arises that shifts to the will proponent the burden of producing evidence. Estate of Holcomb, 2002 OK 90 ¶¶18-19, 63 P.3d 9.

Contest a Will In Oklahoma Based On Lack of Testamentary Capacity

A testator is required to be of sound mind (to have testamentary capacity) to make a valid will under Oklahoma law.  A testator’s lack of testamentary capacity at the time the will was made is a ground to contest the will under Oklahoma law.  Testamentary capacity, or the lack thereof, is a question of fact, to be determined from the evidence in each particular case.  Hunter v. Battiest, 79 Okla. 248.

To have testamentary capacity, Oklahoma law says that the testator must understand, in a general way:

  1. The quality and quantity of his or her property;
  2. The natural objects of his or her bounty; and,
  3. The legal effect of signing the will.

 

The presumption under Oklahoma law is that the testator had capacity, not that that the testator lacked capacity.  If you are contesting an Oklahoma will on the basis that the testator lacked testamentary capacity, you must prove that the testator lacked capacity at the time the will was executed.

Contest a Will Because It Was Not Executed Correctly

In order to make a valid will under Oklahoma law, the will has to be executed with the proper testamentary formalities.  This means that the testator must sign the will at the end, or some person in the testator’s presence and at his direction must sign the testator’s name to the will.  Oklahoma Statutes § 84-55.

The testator must also sign his name in the presence of attesting witnesses, or acknowledge to them that the will was made by him or his authority.  At the time the testator signs or acknowledges the will, the testator must declare to the attesting witnesses that the document is a will.

The witnesses to the Oklahoma will must sign the will in front of the testator, at the testator’s request, at the end of the will.

If any of these testamentary formalities are not properly completed, the lack of compliance is grounds to contest the will under Oklahoma law.  58 Ok Stat § 58-61.

Some of the most common “testamentary formalities” will contests arise because of an insufficient number of witnesses, or the failure of the witnesses to sign the will in the presence of the testator.  Many times, a will that is prepared without the help of an Oklahoma probate lawyer is not done with the proper testamentary formalities and becomes the subject of a will contest.

Contest a Will in Oklahoma On the Ground That the Will Has Been Revoked

Another ground to contest a will under Oklahoma law is that the will has been revoked and is therefore not the operative last will of the decedent.

An Oklahoma will can be revoked by a written will or other writing of the testator, declaring such revocation or alteration, and executed with the same formalities required to make a valid will under Oklahoma law.

A will can also be revoked under Oklahoma law by being burnt, torn, canceled, obliterated or destroyed, with the intent and for the purpose of revoking the will.  84 OK Stat § 84-101.

Duress, Menace, And Fraud As Grounds To Contest an Oklahoma Will

Duress, menace, and fraud are additional grounds to contest an Oklahoma will.  84 OK Stat. § 84-43.  These grounds are closely related to undue influence, and involve elements of pressure, force, lies and threats to procure a will that does not represent the true last wishes of a decedent.

Duress consists of unlawful confinement of the person or family member, unlawful detention of property of the person, or confinement, although lawful, that is fraudulently obtained.  See 15 OK Stat. § 15-55.

Menace consists in a threat of duress, of injury to the person or property, and of injury to the character.  See 15 OK Stat § 15-56.

Fraud can be actual or constructive and occurs when a testator was given false information that causes the testator to change the terms of the will.  See 15 OK Stat § 15-58.

How Long Do You Have To Contest a Will In Oklahoma?

Under Oklahoma law, you have three months from the time the will is admitted to probate to initiate a will contest. 58 Ok Stat § 58-61.

Three months  is not a lot of time.  If you think that you have valid grounds to contest a will, do not ignore any notices from the court regarding the probate.  Doing so can result in missed deadlines and forfeiting your opportunity to contest the will.

 

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