During the probate process, a person’s assets are distributed according to trusts and wills, and any taxes or debts are paid off using their estate. A decedent (the person who has died) usually decides who to leave certain assets to, and how much, when they make their will. You may want to contest a will if you believe it wasn’t made truthfully or legally, or if you believe the contents of the will are unfair.
Contesting a will involves filing a petition that brings the validity of a will into question. However, several requirements need to be met in order to invalidate it. Read on to learn what to think about if you’re planning to contest a will and when you may have the right to do it.
Who can contest a will?
To contest a will, you first need to have standing, or legal authority, to do so. Generally, if you’d benefit from a will being contested, you have standing. For example, if you’d receive more from the estate if the will is invalidated, you have the right to contest. But if you’d receive less from the estate — or nothing at all — if the will is invalidated, you don’t have standing.
While you still need to have standing, you may have the right to contest a will if:
- You’re the beneficiary of a prior or current will.
- You’re the beneficiary of a newer will, which was created after the one being contested.
- You’re not named in the will but would be considered an heir and receive estate assets if there was no will at all — aka the intestate succession law applied.
When can you contest a will?
You may be able to contest a will if you have standing and can prove the will should be invalidated. You can speak with an estate planning attorney to see if you have standing and the evidence needed to contest. Remember, you likely won’t be able to contest the will if you simply feel it’s unfair — you must have legal grounds and evidence to prove the will is invalid.
Here are some grounds in which contesting a will may be possible.
The will is legally invalid
The grounds for a will to be proven legally invalid may vary between state courts. Work with your lawyer to collect evidence if you believe any of the following apply:
- Forgery: You believe the will was signed by someone other than the decedent or the decedent wasn’t mentally competent.
- Lack of due execution: The decedent didn’t follow the rules when the will was executed.
- Mistakes or an incomplete will: The will contains errors or wasn’t properly finished.
- Not signed or notarized correctly: The will was never signed or notarized, but state law requires it.
- Incorrect number of witnesses: There were not enough witnesses present.
- Multiple versions of the will: You’re not sure which will is the correct one.
Lack of mental capacity
You may have grounds to invalidate a will if you believe the decedent was under the influence of drugs or alcohol, unable to make coherent and rational decisions, or mentally incompetent when they made their will.
If you believe the decedent was excessively persuaded, deceived, or abused into creating, changing, or signing a will, you may have grounds to contest it. While not always the case, undue influence and abuse may happen more often to elders with a lack of mental capacity.
The will is revoked
You may be able to contest a will that was revoked by the decedent. This could’ve been done by the decedent modifying an old will, destroying it altogether, or executing a new one.
How do you contest a will?
You may be able to contest part of a will or the entire will, though the latter is usually more common.
You may also be able to contest an amendment to a will, or a codicil, especially if the amendment was made when the decedent lacked mental capacity or there was undue influence involved. In this case, you may be able to contest the amendment alone, without needing to contest the entire will.
Here’s a general process for contesting a will:
- Make sure you’re within the state’s statute of limitations to file the legal paperwork. The clock typically starts when the probate process begins. However, you may still be able to contest after probate.1
- Work with an estate planning attorney to make sure you have standing, grounds, and the evidence needed to contest a will.
- File a petition with the probate court where the will is being validated.
- Depending on the evidence presented, there may be a settlement or a hearing, and a judge will decide the validity of the will.
The cost to contest
Even if you have a good case, the cost of contesting wills is something to consider. While you don’t have to hire a lawyer, they may be your best chance at winning your case — and can tell you if you have a possibility of winning before you file any paperwork.
Between lawyers, paperwork, and legal fees — that could drag out for weeks, months, or years — you could end up spending thousands of dollars. If you stand to gain more from contesting a will than you’d spend to contest it, doing so may be worthwhile.
What happens after a successful contesting?
If you’re contesting a will and succeed in proving it’s invalid, a couple of things may happen as a result.
If any estate planning documents were made prior to the will, which was proved invalid, the decedent’s possessions will likely be passed according to those documents. If not, the possessions may go to the decedent’s heirs according to any intestacy succession laws in that state. This usually means their spouse and children, or sometimes siblings and parents, will inherit the possessions.1
There are some cases when part of the will may be upheld, while the rest is proved invalid. In this case, the court will likely decide how the rest of the estate will be distributed.
Can you prevent your will from being contested?
If you’re writing a will, you can’t fully prevent it from being contested. However, you can make it harder to do. Adding a no-contest clause still allows the will to be contested, but if the person who challenges the will is unsuccessful, they may lose whatever was left to them.1 This may dissuade someone from contesting a will in the first place.
Reduce the stress of contesting
If you have the standing and grounds to contest a will, make sure it’s a process you can financially, mentally, and emotionally sustain before you decide to move forward.
The grief from losing a loved one can be hard enough without potential challenges over what they’ve left behind. Start by checking out this list of beneficiary support resources to help you through this transition.