A will is a legal document that a person creates in order to clarify how they wish their property to be distributed once they die. This property may be real property, or personal property. In most states, a will must have each of the following in order to be valid and legally enforceable:
- The will must be in writing;
- The will must be signed by the will’s creator, or testator;
- The will must be witnessed by at least two competent witnesses; and
- The testator must have testamentary capacity.
As a will is a legal document, it is a very important tool that carries much authority in regards to a person’s property, money, and other assets. Because of this, it should not be surprising that there are often conflicts over what a will says. Such conflicts are referred to as “will contests” and generally involve the recipients, or beneficiaries, disputing over various terms of the will. To contest a will means to challenge the authority or validity of the will as well as its provisions.
Contesting a will often leads to a legal battle. Some of the most common examples of will contests include:
- Disputes concerning which family member is entitled to what specific property;
- Disputes regarding the amount of money to be distributed to a specific person;
- Conflicts over specific items, such as heirlooms;
- Conflicts as to whether a person is actually entitled to receive an inheritance; and
- Various other disputes, usually regarding the testator’s intentions.
In general, a person will mostly contest a will when they feel they are being cheated out of what the testator intended for them to receive, such as their rightful inheritance. Thus, that person will believe that the distribution is unfair or otherwise not in accordance with the decedent’s actual wishes and intentions.
Who May Contest a Will? What Are the Legal Grounds for Contesting a Will?
Not everyone involved with the testator may contest their will. In fact, only a person who has what is referred to as “standing” may contest a will. A person who has standing to contest a will is someone who is named in the actual will document, and is therefore a beneficiary.
Also, someone who would lose their inheritance under the will if the will was deemed invalid could have standing to contest the will. States may have their own individual laws regarding standing as well as wills and estates, so it is important to check with a local attorney before attempting to establish standing and contest a will.
There are several legal arguments or grounds that allow a person to contest a will. Again, these may vary from state to state. In general, these arguments or grounds include:
- Mistakes or errors in the will, sometimes proven and clarified by other documents authored by the decedent;
- Ambiguous language used in the will;
- Lack of mental capacity, as in the testator was not sound of mind when creating their will; and
- Fraud or duress, if it is believed that the will was created under fraudulent conditions or the threat of harm.
A no-contest or anti contest clause may be placed in a will. This states that any beneficiary who attempts to contest the will terms will automatically forfeit any claim they may have to an inheritance under the will. However, they may be exceptions to this, depending on the specific circumstances that lead a beneficiary to contest the will despite a no-contest clause. An example of this would be if the beneficiary believed the testator was under duress when creating their will. Florida and Indiana do not allow anti contest clauses, while the rest of the U.S. recognize or allow them, subject to local state limitations and provisions.
How Is a Will Contested? How Can it be Avoided?
Contesting a will generally begins with filing a lawsuit with the probate court. This could involve submitting various documents that highlight your reasons for contesting the will. It is important that you state the exact grounds for contesting the will. An example of this would be that you believe fraud was involved in the will’s creation. There could be filing deadlines associated with contesting a will. It could be beneficial to retain an attorney to assist you in this process.
Wills are often contested when a will is poorly written. As such, most will contests may be avoided through a properly-written will that uses clear language and is as specific as possible. Avoiding vague language is one of the best ways to avoid a will contest later on. Additionally, if you are creating a will and your wishes change over the course of your lifetime, you may consider modifying your will in order to reflect your new wishes regarding property distribution.
If there is a previous will document in existence, that could complicate matters and cause confusion regarding the testator’s actual intentions and wishes. Courts may need to review other legal documents in order to help determine which will is actually valid, and what the testator’s intentions were.
Do I Need an Attorney to Assist in Contesting a Will?
Although there may be much to gain from contesting a will, it can be a complicated and time consuming process that requires knowledge of local and state laws. A skilled and knowledgeable estate attorney can help determine the correct contest process for your state, as well as determine if you have standing to do so. If you are looking to draft a legally sound will and avoid having it contested later on, an estate attorney can also assist in estate planning.