Takeaways
- Contesting a will means challenging its validity in court, but you must have a direct financial interest and a recognized legal reason.
- The process is legally complex, costly, and risky, so consulting an experienced probate attorney is essential before taking action.
When a person dies, their last will and testament is meant to provide clarity about how their estate will be distributed. But what happens when you believe that a loved one’s will doesn’t reflect their true wishes or that something went wrong in the process of creating it?
Contesting a will may be one legal option. However, it’s not available to everyone and not something to undertake lightly. Here’s what you need to know.
What Does It Mean to Contest a Will?
Contesting a will means formally challenging its validity in probate court, which oversees the distribution of a deceased person’s estate. When you contest a will, you’re arguing that the document should not be recognized as legally valid, either in whole or in part.
Contesting a will is different from simply being unhappy with its contents. If your grandmother left her antique jewelry to your cousin instead of to you, that alone may not be grounds for a legal challenge. Courts generally respect a person’s right to leave their belongings to whomever they choose. To successfully contest a will, you must have both the legal standing to bring a challenge and a valid legal reason to do so.
Who Can Contest a Will?
Before you can challenge a will, the law requires that you have legal standing – a direct, financial interest in the outcome of the case. Not everyone who knew or loved the deceased necessarily qualifies as having legal standing.
People Who Typically Can Contest a Will
- Beneficiaries named in the will: If you’re already mentioned in the will but believe the document is invalid, you have standing to challenge it.
- Beneficiaries from a prior will: If the deceased had an earlier will that left you more (or anything at all), and a newer will cuts you out, you may have standing to contest the newer document.
- Legal heirs under intestacy laws: These are people who would inherit if the deceased had died without a will – typically, spouses, children, and sometimes parents or siblings. Even if the will excludes them, they can challenge its validity.
Example: Margaret has three adult children. Her most recent will leaves everything to a charity and nothing to her children. All three children have standing to contest the will, because they would inherit under their state’s intestacy laws if no valid will existed.
People Who Typically Cannot Contest a Will
- Friends and neighbors: A close friend who expected to be included but was left out generally has no legal standing because they wouldn’t inherit anything even if the will were invalidated.
- Distant relatives with no legal claim: A third cousin who had no prior relationship to the estate and would not inherit under intestacy laws typically cannot bring a challenge.
- Charities or organizations not previously named: A nonprofit that hoped to receive a bequest but was not named in an earlier will generally lacks standing.
Example: Robert was a longtime friend and caretaker of an elderly woman named Helen. Helen’s will leaves everything to her nephew. Robert expected to be included in the will but was not. Because Robert is not a blood relative and would not inherit under intestacy laws, he lacks standing to contest the will, even if he dedicated years of his life to caring for Helen.
Valid Reasons to Contest a Will
Having standing is necessary but is not sufficient. You also need a legally recognized reason, called “grounds,” to challenge the will. Courts recognize several grounds for contesting a will.
Lack of Testamentary Capacity
For a will to be valid, the person making it, the “testator,” must have been of sound mind at the time of signing. This is sometimes called having “testamentary capacity.” The legal standard is generally that the testator must have understood:
- The nature and extent of their property
- Who their natural heirs are (family members and loved ones)
- What a will does and that they were making one
- How those elements fit together to form a distribution plan
Example: William, who had been diagnosed with advanced dementia, signed a new will just weeks before his death that dramatically changed his estate plan. His children from a previous marriage may have legal grounds to contest the will if they can demonstrate that William lacked the mental capacity to understand what he was signing at the time.
Important: A diagnosis of mental illness or cognitive decline does not automatically mean someone lacked testamentary capacity. Courts look at the person’s state of mind specifically at the moment the will was signed.
Undue Influence
This occurs when someone pressures, manipulates, or coerces the testator into making a will that reflects the influencer’s wishes rather than the testator’s own. Courts look for situations where a person in a position of power or trust, such as a caregiver, a family member, or a new romantic partner, essentially overrides the free will of the testator.
Example: An elderly widower begins a relationship with a much younger partner. Within months, he changes his will to leave nearly his entire estate to the new partner, cutting out his adult children entirely. Shortly afterward, he passes away. The children may argue that the new partner exerted undue influence, particularly if evidence shows she isolated him from family, controlled his communications, or was present during the will signing.
Fraud or Forgery
A will may be contested if it was obtained through fraud. For instance, someone may have tricked the testator into signing a document they didn’t know was a will, or misrepresented facts that caused the testator to change their estate plan. Outright forgery (for example, fabricating a will entirely) is also grounds for challenge, though less common.
Example: A senior woman’s caretaker presents her with a stack of documents to sign, telling her they are medical forms. Among them is a new will naming the caretaker as the sole beneficiary. This constitutes fraud, and the woman’s family would have grounds to contest the will.
Improper Execution
Wills must be signed and witnessed according to specific legal requirements that vary by state. Common requirements include:
- signing in front of witnesses who are not beneficiaries in the will,
- having a minimum number of witnesses (usually two), and
- in some states, having the will notarized.
If these formalities weren’t followed, the will may be invalid.
Example: A man types out his will, signs it, and stores it in a filing cabinet but never has it witnessed. In most U.S. states, this will is not legally valid and his estate would be distributed as if he had died without a will. His heirs could contest the document on the grounds of improper execution.
Revocation
If the testator created a newer will after the one being probated or took deliberate steps to revoke the existing will (such as physically destroying it), the older will may not be valid.
The Basic Process of Contesting a Will
If you believe you have standing and valid grounds, here is a general overview of the process of contesting a will:
- Act quickly: Wills are typically filed in probate court shortly after death. Most states impose strict deadlines, often ranging from a few months to a few years from the date the will is admitted to probate, for filing a contest. Missing this window can permanently bar your claim.
- Consult an estate planning attorney: Contesting a will is a complex legal process. An experienced probate attorney can evaluate the strength of your case, advise you on your state’s specific laws, and represent you in court.
- Gather evidence: Depending on your grounds, you may need to gather documents that include medical records, financial records, witness statements, prior versions of the will, or communications between the testator and the person you suspect exerted influence.
- File a formal objection: Your attorney will file a legal challenge in probate court. The estate is typically frozen while the challenge is pending.
- Consider settlement: Many people opt to resolve will contests through negotiated settlements rather than a full trial. Litigation is expensive and emotionally draining for everyone involved.
The Costs and Risks of Contesting a Will
Contesting a will is not without risk. Will contests are often billed by the hour and can stretch on for years, resulting in substantial legal fees. Some wills even contain “no-contest clauses,” which specify that any beneficiary who challenges the will forfeits their inheritance if the challenge fails.
Courts also set a high bar for overturning a will. Simply believing a will is unfair or that the deceased “would have wanted” something different is not enough. You need evidence, and the burden of proof is on the person bringing the challenge.
A Final Word
Contesting a will is sometimes the right thing to do to protect a vulnerable person’s true wishes from fraud or manipulation or to ensure that a legally defective document doesn’t stand. But it should never be entered into lightly. The process is costly, time-consuming, and can permanently fracture family relationships.
Before deciding to challenge a will, speak honestly with a qualified estate planning attorney. Many offer free or low-cost initial consultations and can help you realistically assess whether your case has merit and whether pursuing it is truly in your best interest.
For additional reading, check out the following articles:
