Contesting a will is what you do when you challenge the validity of a person’s last will and testament during probate. Probate is the official judiciary process of validating a will. This process involves asset and property distribution in accordance with the instructions stated in the will. If you seek to invalidate a will’s terms, be sure you have legal standing.
What Grounds Do You Need to Contest a Will?
If you have reason to believe that a will does not represent a testator’s true intentions upon leaving a final will and testament, you may contest the will and render it invalid. Here are common grounds for contesting a will:
The Will Wasn’t Signed in Accordance With Applicable State Laws
Each state has very specific laws governing how a last will and testament must be signed. For example, the will must be signed by the testator—the person who created and is leaving the will in the presence and hearing of at least two witnesses in Florida. The testator and the witnesses must be in the same room at the same time, and each must sign the will while the others are watching. It’s easy to assume that a will that’s executed in an estate lawyer’s office will be signed with the proper legal formalities, but this isn’t always the case. Failing to sign a will in accordance with applicable state laws is the first and foremost reason why a will is contested, and it’s also the most common reason why a will is found to be invalid.
The Testator Lacked Testamentary Capacity to Sign a Will
Testamentary capacity” means that the testator understands the nature and value of her “bounty” or assets and that she understands the natural objects of that bounty—who should logically inherit her assets. She must understand the legal effect of signing a will.
State laws dictate the threshold that must be overcome to prove that a testator lacked testamentary capacity, and the bar isn’t usually set very high. For example, a person can show signs of dementia in some states yet still be considered to have the testamentary capacity to sign a will. She understands the necessary details, even if her memory and mind are slipping in other areas.
The testimony of the witnesses to the will signing becomes crucial in cases such as this. Absent a doctor’s visit or adjudication of incapacity within days of the will signing, lack of testamentary capacity is very difficult to prove.
The Testator Was Unduly Influenced
People tend to become weaker both physically and mentally as they age, and this can make them more susceptible to the influence of others. The key to undue influence in the context of a will contest is this: Did the alleged influencer exert such extreme pressure and put the testator under such severe duress that it caused him to lose his free will and instead succumb to the will of the influencer? Mere nagging, threats, and verbal abuse aren’t enough to establish undue influence. Proving it typically involves actions such as consulting with the testator’s attorney regarding the provisions of the will, paying for the will, and isolating the testator from his family and friends. As with lack of testamentary capacity, undue influence is very difficult to prove.
The Will Was Procured by Fraud
A will procured by fraud is one that the testator is tricked into signing. For example, the testator might be presented with a document and told that it’s a deed or a power of attorney. She therefore signs it, but it turns out that the document is a will. The will is therefore procured by fraud.
This tends to go hand-in-hand with testamentary capacity because most people would review the document, at least to some extent, before signing, but fraud is nonetheless a separate ground for a contest. The problem with proving that a will was procured by fraud is that the testator can’t be questioned about what he thought he was signing, and this is where state laws come into to play. The witnesses must be asked what they thought the testator was signing.
The will might be declared invalid if the testimony of the witnesses doesn’t add up, but more likely because it wasn’t signed properly, not necessarily because it was procured by fraud.
Do You Want to Contest a Loved One’s Will?
In the absence of blatant lies and wrongdoing on the part of multiple people, or explicit medical evidence at or near the time the will was signed that the testator was incompetent, proving that a will is invalid can be difficult and very expensive.
Can You Sue to Contest a Will in Probate Court?
According to basic probate laws, only “interested persons” may challenge a will, and only for valid legal reasons. The Probate Code identifies “interested persons” as heirs (family members), beneficiaries, creditors, and other parties who have a property right or claim against the estate being administered.
Valid legal reasons to contest a will include:
Who Has Standing to Contest a Will?
While laws vary from state to state, all state laws have requirements that must be met before a will contest can take place. The first requirement is “legal standing.”
The only person who has legal standing to challenge a will and sue for inheritance is someone who is:
Standing is the first requirement to overcome to contest a will. You must either show that you were named in the will (or should have been) or show that you would have received something of value (typically money) if the person had died without a will.
Beneficiaries Can Contest a Will
Who is a beneficiary of a will? This means those named in the will. This can include a surviving spouse, children, grandchildren, and other relatives, but it can also include friends, faith communities, universities, charities, and even pets. Beneficiaries have the standing to challenge a will.
Heirs Can Contest a Will
Heirs are the most commonly named beneficiaries in a will. Heirs are relatives who would inherit even if the decedent had died “intestate” (without a will). Heirs include spouses, children, parents, grandparents, and siblings. Heirs can challenge a will if they were omitted or were left with a disproportionate share in the inheritance. Heirs have the standing to challenge a will because they would have received a share of the estate through the laws of intestate.
Minors Can Contest a Will
Minors cannot challenge a will until they have reached the age of majority (typically age 18). This is because minors are not legally able to initiate legal proceedings. A parent or guardian may initiate a lawsuit on their behalf.
What Type of Will Cannot Be Contested?
Any will can be contested if you have standing and valid reasons to challenge it. However, it may not be worth contesting a will. For example, some wills include a “no-contest” clause. A no-contest clause says that if a beneficiary or an heir challenges a will and loses, they will not inherit at all. They are disinherited.
No-contest clauses are not enforced in every state:
Consult with a local estate planning attorney to learn how your state probate courts handle no-contest clauses.
Consequences of a Will Contest
The most obvious consequence of contesting a will is the cost of going to court. Most people will choose to hire a probate litigation attorney to bring a will contest lawsuit to court. Depending on the size of the potential inheritance and the complexity of the case, the expense of a will contest may or may not be cost-effective. Your lawyer can advise you on this. On the other hand, if the estate is large, it may be well worth the time and money to challenge a will in probate court.
No-Contest Clauses in Wills
If you are a beneficiary of a will and there is a no-contest clause, there is a possibility that if you lose your lawsuit, you could be disinherited. But again, that will depend upon whether your state enforces no-contest clauses. If you are not a beneficiary of the will and you sue for an inheritance, the no-contest clause will not affect your case because you would not have inherited anyway.
Personal Implications of Contesting a Will
There may be personal consequences as well. Loved ones may disagree with your decision to bring a lawsuit. They may have different opinions about the decedent’s (the person who wrote the last will and testament) mental capacity. And, of course, people and institutions with their own financial interests at stake will likely take issue with the legal challenge.
Reasons to Challenge a Will
It is typically very difficult to challenge a will. Approximately 99 percent of wills pass through probate without issue. Wills are seen by the courts as the voice of the testator, the person who wrote the will. Since that person is no longer here to speak about his or her wishes, the courts stick pretty stringently to the will. Anyone who may have an interest to gain from the will can challenge a will. The most successful challengers are usually the spouses, and the most successful grounds are that the person lacked testamentary capacity or that the person was unduly influenced or persuaded to write the will a certain way.
If you challenge a will and are successful, it can be voided in its entirety or just in part. Sometimes, a prior provision, such as from a previous will can be reinstated. If the entire will is voided, the court will distribute the property as if no will had ever existed. This distribution follows intestacy laws, and is guided by familial relationships.
Testamentary Capacity
The law requires that only adults 18 years of age or older have the capacity to create a will. Minors lack the capacity to form a legal will. However, in some jurisdictions, minors who serve in the military or minors who are married are given the right to make a will.
Adults are presumed to have testamentary capacity. When litigation arises that challenges an adult’s testamentary capacity, it is usually on the basis that the adult has senility, dementia, insanity, was under the influence of a substance, or in some other way lacked the mental capacity to form a will. Basically, to challenge a will based on mental capacity, you must show that the testator (the person who created the will) did not understand the consequences of making the will at the time of the will’s creation. More specifically, the person must understand:
Fraud, Forgery, and Undue Influence
You can challenge a will by showing that the will was procured by fraud, forgery, or undue influence. This usually involves someone manipulating a vulnerable person into leaving all or much of the property to the manipulator. The term “undue influence” merely means that the person lacked the free will to bargain because of the manipulator.
The Will’s Provisions
Each state has its own laws about what a valid legal will must contain. Most states require that the will:
Self-proving affidavit
There is no requirement that a will should be notarized. However, many people include a “self-proving” affidavit in their wills. This is a sworn statement that the witnesses sign in front of a notary public, which relieves the witnesses of having to come to court later to swear to the validity of the will.
Contesting a will is what you do when you challenge the validity of a person’s last will and testament during probate. Probate is the official judiciary process of validating a will. This process involves asset and property distribution in accordance with the instructions stated in the will. If you seek to invalidate a will’s terms, be sure you have legal standing.
If you have reason to believe that a will does not represent a testator’s true intentions upon leaving a final will and testament, you may contest the will and render it invalid. Here are common grounds for contesting a will:
• The will fails to adhere to state laws: State laws vary and are very specific regarding valid will and testament requirements. If you live in Utah, a valid will needs to be in writing and have two witnesses sign in the testator’s presence. The testator’s signature must be at the end of the will. Review your state laws surrounding last wills and testaments, or contact a lawyer to determine whether you can contest a will on the grounds of informality upon signing.
• The will is unclear: Valid wills must clearly indicate that the testator meant for the document to be their last will and testament. You may argue that the testator did not intend for a document to be their will. Any doubt to a will’s validity can serve as grounds for contesting a will.
• The will contains forgery and fraud: You can contest a will on the grounds of fraud. However, it may be challenging to prove because the deceased testator cannot attest to your claim of intentional deception. If you can prove that the will contains forged signatures, the will becomes invalid.
• The will writer was unduly influenced or coerced: If you believe that someone persuaded the testator into signing a will, you may contest the will on the grounds of undue influence. Like fraud claims, it may be challenging to prove that someone coerced the testator into making the will you are contesting. Coercion may take the form of physical or verbal violence. You will need clear evidence to contest a will on the grounds of undue influence.
• An heir disagrees with asset distribution: As an heir, you can challenge a testator’s will based on unfair asset distribution. You may believe you are entitled to more of the estate than what the will states. Another example is when you may have mistakenly been taken out of a will. With such a situation, you can argue to have a share of the assets.
Each state has very specific laws governing how a last will and testament must be signed. For example, the will must be signed by the testator—the person who created and is leaving the will in the presence and hearing of at least two witnesses in Florida. The testator and the witnesses must be in the same room at the same time, and each must sign the will while the others are watching. It’s easy to assume that a will that’s executed in an estate lawyer’s office will be signed with the proper legal formalities, but this isn’t always the case. Failing to sign a will in accordance with applicable state laws is the first and foremost reason why a will is contested, and it’s also the most common reason why a will is found to be invalid.
Testamentary capacity” means that the testator understands the nature and value of her “bounty” or assets and that she understands the natural objects of that bounty—who should logically inherit her assets. She must understand the legal effect of signing a will.
State laws dictate the threshold that must be overcome to prove that a testator lacked testamentary capacity, and the bar isn’t usually set very high. For example, a person can show signs of dementia in some states yet still be considered to have the testamentary capacity to sign a will. She understands the necessary details, even if her memory and mind are slipping in other areas.
The testimony of the witnesses to the will signing becomes crucial in cases such as this. Absent a doctor’s visit or adjudication of incapacity within days of the will signing, lack of testamentary capacity is very difficult to prove.
People tend to become weaker both physically and mentally as they age, and this can make them more susceptible to the influence of others. The key to undue influence in the context of a will contest is this: Did the alleged influencer exert such extreme pressure and put the testator under such severe duress that it caused him to lose his free will and instead succumb to the will of the influencer? Mere nagging, threats, and verbal abuse aren’t enough to establish undue influence. Proving it typically involves actions such as consulting with the testator’s attorney regarding the provisions of the will, paying for the will, and isolating the testator from his family and friends. As with lack of testamentary capacity, undue influence is very difficult to prove.
A will procured by fraud is one that the testator is tricked into signing. For example, the testator might be presented with a document and told that it’s a deed or a power of attorney. She therefore signs it, but it turns out that the document is a will. The will is therefore procured by fraud.
This tends to go hand-in-hand with testamentary capacity because most people would review the document, at least to some extent, before signing, but fraud is nonetheless a separate ground for a contest. The problem with proving that a will was procured by fraud is that the testator can’t be questioned about what he thought he was signing, and this is where state laws come into to play. The witnesses must be asked what they thought the testator was signing.
The will might be declared invalid if the testimony of the witnesses doesn’t add up, but more likely because it wasn’t signed properly, not necessarily because it was procured by fraud.
In the absence of blatant lies and wrongdoing on the part of multiple people, or explicit medical evidence at or near the time the will was signed that the testator was incompetent, proving that a will is invalid can be difficult and very expensive.
According to basic probate laws, only “interested persons” may challenge a will, and only for valid legal reasons. The Probate Code identifies “interested persons” as heirs (family members), beneficiaries, creditors, and other parties who have a property right or claim against the estate being administered.
Valid legal reasons to contest a will include:
• Incapacity of the deceased person when they wrote the will
• Fraud or someone exerting undue influence over the testator]
• Insufficient or inappropriate witnesses
• Unclear provisions of the will
• The existence of a later valid will
While laws vary from state to state, all state laws have requirements that must be met before a will contest can take place. The first requirement is “legal standing.”
The only person who has legal standing to challenge a will and sue for inheritance is someone who is:
• Named in the will
• Not a beneficiary but would inherit under the will if a judge deems the will invalid
Standing is the first requirement to overcome to contest a will. You must either show that you were named in the will (or should have been) or show that you would have received something of value (typically money) if the person had died without a will.
Who is a beneficiary of a will? This means those named in the will. This can include a surviving spouse, children, grandchildren, and other relatives, but it can also include friends, faith communities, universities, charities, and even pets. Beneficiaries have the standing to challenge a will.
Heirs are the most commonly named beneficiaries in a will. Heirs are relatives who would inherit even if the decedent had died “intestate” (without a will). Heirs include spouses, children, parents, grandparents, and siblings. Heirs can challenge a will if they were omitted or were left with a disproportionate share in the inheritance. Heirs have the standing to challenge a will because they would have received a share of the estate through the laws of intestate.
Minors cannot challenge a will until they have reached the age of majority (typically age 18). This is because minors are not legally able to initiate legal proceedings. A parent or guardian may initiate a lawsuit on their behalf.
Any will can be contested if you have standing and valid reasons to challenge it. However, it may not be worth contesting a will. For example, some wills include a “no-contest” clause. A no-contest clause says that if a beneficiary or an heir challenges a will and loses, they will not inherit at all. They are disinherited.
No-contest clauses are not enforced in every state:
• In some states, if you sue and lose, you can still inherit what you would have inherited if you had not sued.
• Some states enforce no-contest clauses unless the person bringing the lawsuit has a good reason to sue.
Consult with a local estate planning attorney to learn how your state probate courts handle no-contest clauses.
The most obvious consequence of contesting a will is the cost of going to court. Most people will choose to hire a probate litigation attorney to bring a will contest lawsuit to court. Depending on the size of the potential inheritance and the complexity of the case, the expense of a will contest may or may not be cost-effective. Your lawyer can advise you on this. On the other hand, if the estate is large, it may be well worth the time and money to challenge a will in probate court.
If you are a beneficiary of a will and there is a no-contest clause, there is a possibility that if you lose your lawsuit, you could be disinherited. But again, that will depend upon whether your state enforces no-contest clauses. If you are not a beneficiary of the will and you sue for an inheritance, the no-contest clause will not affect your case because you would not have inherited anyway.
There may be personal consequences as well. Loved ones may disagree with your decision to bring a lawsuit. They may have different opinions about the decedent’s (the person who wrote the last will and testament) mental capacity. And, of course, people and institutions with their own financial interests at stake will likely take issue with the legal challenge.
It is typically very difficult to challenge a will. Approximately 99 percent of wills pass through probate without issue. Wills are seen by the courts as the voice of the testator, the person who wrote the will. Since that person is no longer here to speak about his or her wishes, the courts stick pretty stringently to the will. Anyone who may have an interest to gain from the will can challenge a will. The most successful challengers are usually the spouses, and the most successful grounds are that the person lacked testamentary capacity or that the person was unduly influenced or persuaded to write the will a certain way.
If you challenge a will and are successful, it can be voided in its entirety or just in part. Sometimes, a prior provision, such as from a previous will can be reinstated. If the entire will is voided, the court will distribute the property as if no will had ever existed. This distribution follows intestacy laws, and is guided by familial relationships.
The law requires that only adults 18 years of age or older have the capacity to create a will. Minors lack the capacity to form a legal will. However, in some jurisdictions, minors who serve in the military or minors who are married are given the right to make a will.
Adults are presumed to have testamentary capacity. When litigation arises that challenges an adult’s testamentary capacity, it is usually on the basis that the adult has senility, dementia, insanity, was under the influence of a substance, or in some other way lacked the mental capacity to form a will. Basically, to challenge a will based on mental capacity, you must show that the testator (the person who created the will) did not understand the consequences of making the will at the time of the will’s creation. More specifically, the person must understand:
• The extent and value of the property;
• Who he or she is expected to provide for and who the beneficiaries of the will are;
• The disposition he or she is making and what a will means; and
• How these elements relate in order to form a distribution of property.
You can challenge a will by showing that the will was procured by fraud, forgery, or undue influence. This usually involves someone manipulating a vulnerable person into leaving all or much of the property to the manipulator. The term “undue influence” merely means that the person lacked the free will to bargain because of the manipulator.
Each state has its own laws about what a valid legal will must contain. Most states require that the will:
• explicitly states that it is the testator’s (the person who created it) will;
• includes at least one substantive clause, such as leaving a certain piece of property to a certain heir; and
• appoints a personal representative (executor or executrix) to be responsible for invoking the terms when the time comes. In many states, the court will appoint an executor and enforce the will, even when the will names its own executor.
There is no requirement that a will should be notarized. However, many people include a “self-proving” affidavit in their wills. This is a sworn statement that the witnesses sign in front of a notary public, which relieves the witnesses of having to come to court later to swear to the validity of the will.
Legal Assistance
Individuals who are considering drafting a trust or a will may wish to consult with an estate planning lawyer. He or she can explain the advantages of using a trust as well as a will. He or she can make recommendations based on the specific considerations of the client. He or she may even recommend using both documents, such as by using a pour-over will that places any property owned at the time of the testator’s death into the trust.
