Under Alabama law, a Last Will and Testament must be written, made by a person 18 years of age or older (Alabama Code § 43-8-130), and signed by two witnesses who witnessed the signing of the will or who witnessed the testator's acknowledgment of the signature (Alabama Code § 43-8-131). Thus, to probate or prove a will, a proponent of the will would only have to prove that the will was in writing, in proper form, duly executed and witnessed by two persons. There is a strong presumption that the person making the will (called a "testator", or "testatrix" for a female) has the mental capacity to make the will. Self-proving wills alleviate the need to prove or probate the will by the testimony of a witness to the will.

A general discussion of Last Wills and Testaments is provided by an online brochure provided by the Alabama Bar Association.

The grounds to contest a Last Will and Testament are 1) lack of mental capacity, 2) undue (illegal) influence, 3) fraud, and 4) forgery of signature. Most contests are made based on lack of mental capacity, undue influence and fraud. The persons who can contest a will include any persons who are entitled to share in the distribution of the deceased person's estate had the deceased not made a will, and any person who would have been a beneficiary under a prior will which was revoked by the contested will.

Alabama law requires that sufficient capacity to make a will includes recall of the property of the testator, the objects of the testator's bounty such as spouse and children, how the testator wants to transfer his property at his death and how each of these areas relate one to another. A person can have sufficient capacity even though he/she is old, feeble, and weakminded. Furthermore, a person can have periods of delusion and incapacity as long as he is lucid at the time of executing the will. A will is invalid if it is made by a testator who does not have sufficient capacity to make the will at the time it is executed.

If a testaor has been under "undue" influence in making the will, then the will is likewise not valid. Not all influence, however, is undue. Influence due to love and affection is not undue. On the other hand, influence which is based on fraud and/or exertion of control which destroys the testator's free agency and keeps him from doing his own will because he is too weak to resist is undue. A contestant can establish a case of undue influence merely by proving a confidential relationship between the testator and a favored beneficiary, and proving that the favored beneficiary was active in and about the preparation of the will.

Important questions are:

• Who had the testaor to make the will?
• Who prepared the notes for the making of the will?
• Who drafted the will?
• Who made contact with the attorney to meet for consulation and drafting the will?
• Who took the testator to see the attorney so that a will could be drafted?
• Who was with the testator in the lawyer's office when the will was being discussed?
• Did the favored beneficiary discuss the will with the testator before it was drafted?
• Did the favored beneficiary lie about others in order to turn the testator against other potential beneficiaries?
• What control did the favored beneficiary have over the testor?
• What was the mental and physicial condition of the testator in and around the time of making the will?
• What will the testator's doctor say about the testator's mental and physical condition in and around the time the will was made?.

A will contest must be filed in the circuit court not later than 6 months after the will has been admitted for probate in the probate court.

Our firm has tried will contests in Alabama and Georgia. We have represented contestants in several will contests involving estates worth over $1,000,000.00. We have experience trying will contest cases as well as the contest of other legal documents including deeds and bank accounts.

If you believe that a loved one made a will without the mental capacity to do so or that he/she made a will under the undue influence of another, you need to call an attorney at out firm for an appointment immediately due to the unusally short time to file such an action.

We sincerely appreciate you considering Burns, Burns & Garner for your potential will contest claim.