A will is a legal document that contains instructions for the disbursement of property and assets when someone dies. The will is the decedent’s wishes for their beneficiaries, and helps to eliminate confusion and conflict during a very difficult time.

Thus, a will contest is a formal objection made against the validity of the will in question. This formal objection must be based on the claim that the will does not reflect the actual intent of the decedent, or that the will is invalid for some other reason. A will contest also refers to the legal proceeding in which the terms or legal validity of the will is challenged.

Typically, family members will contest the will if they feel they are being cheated out of their inheritance. If there is something of worth to gain from the will, the involved parties are likely to instigate a legal battle.

Because of the amount of assets involved, the wealthy are more likely to contest a will. If the will is contested, the probate process will be initiated in order to determine the validity of the will, and distribute the assets accordingly.

Who May Challenge a Will?

It is important to note that not everyone is eligible to contest a will. Only “interested persons” are allowed to contest a will, meaning that only those listed in and/or benefited by the will are legally able to contest the will. You must have standing in a probate court.

This includes children, heirs, spouses, and creditors, to name a few. Additionally, if the person would automatically inherit from the state even if the will was found to be invalid, they have standing to challenge the will.

The latter typically includes spouses and/or immediate family relations, by blood. Stepchildren, foster children, and in-laws may not challenge a will unless they are specifically named in the will, or are legally recognized as children of the decedent, such as legally adopted children.

There are other legal procedures to create an official child-parent relationship; these vary from state to state. This means that in order to challenge a will, there must be an established blood or marital relationship.

How Can I Contest a Will, and What is to be Gained From Contesting a Will?

If you feel you need to contest a will, the first step is to ensure that you actually have legal standing to do so. You will need to be personally affected by the outcome of the case, such as an intestate heir, or a beneficiary named in the decedent’s original will.

Additionally, you will need to file your contest in a timely manner, meaning that your motion was filed within the statute of limitations set by your state. You must prove that there is a legal basis for this contest. Essentially, there are four grounds for contesting a will:

  1. The will lacks the proper, legal signature, such as the lack of a witness at the time of the signing;
  2. The decedent was not mentally competent at the time in which they drafted the will, rendering the will invalid. There could be medical evidence to prove this claim;
  3. The decedent was pressured by someone to agree to the terms of the will, or “unduly influenced” when making the will; and
  4. The decedent was mistaken or induced by fraud to sign the will.

Additionally, if the decedent was systematically isolated from family and friends by the primary beneficiary of the will, there is a good chance the will could be contested on the grounds of undue influence. Further, if the decedent has another will or trust in which the terms overrule the current will, there is a case for contest.

What is to be gained from contesting a will? If the will is successfully challenged, the entire will, or part of it, will be voided. Further, a prior will may be reinstated. If the entire will is voided and there is no prior will, the decedent’s assets are distributed as if there was no will.

This could mean that one singular beneficiary receives all assets as a result of contesting the will. Something else to be gained from contesting a will is a sense of justice, if it is believed that the decedent was unduly influenced or wronged in some way by their will.

How Can I Avoid a Will Contest?

Will contests are messy and drawn out processes. Many of these contests can be avoided by the will maker ensuring that there is good drafting and planning, often utilizing an attorney to draft clear and concise language.

Other means, such as using trusts to give away assets, are helpful in decreasing the amount of assets written into wills. The more simple and clear the will, the less likely a contest will be necessary. Other ways to avoid probate include:

  • Informing your friends and family that a will does, indeed, exist; or
  • Including a no-contest clause in your will, to prohibit a recipient from challenging the will’s validity.

What Other Factors Can Determine a Will Challenge?

Wills that violate public policy or state laws are subject to being invalidated. Thus, if someone challenges a will, evidence of a decedent’s intentions become extremely important. The court can use the testimony of witnesses to the will’s signing as evidence, or the attorney or solicitor that helped the decedent in drafting the will.

Any letters or written testimonies explaining why someone was left out of the will are also considered, and if that reason is conditional, then an attorney may be able to argue that the conditions were never met.

Do I Need an Attorney for Assistance with Contesting a Will?

A knowledgeable and experienced estate attorney is a valuable asset when facing probate issues. They will help you if you believe you have been wrongfully deprived of an inheritance, or if you believe the decedent was incompetent or unduly influenced at the time