Probate and Estate Planning Information Center

Will Contests

The fact that a person leaves a will does not guarantee that her or his property will be distributed according to the will's terms. A court generally must provide an opportunity to allow others to object to the will, and a legal challenge, called a will contest, may be brought by anyone with an interest in the will who believes it is invalid.

If you believe a will is invalid, or if someone is challenging a will you are administering or benefiting from, an attorney with experience in will contest cases can help. An experienced attorney can assist you with this type of difficult and emotionally-charged case and can advise you on how to proceed.

Grounds for contesting a will include:

• Later Will. If a later will was made, and the making of the will conformed to the necessary legal requirements, then the later will replaces the earlier will.
• Incapacity. A valid will requires that the decedent was of sound mind at the time the will was made. The "sound mind" requirement typically requires that at the time the will was made, the decedent had the ability to generally understand the nature and extent of the property to be disposed, his or her relationship to those who would naturally claim a benefit from the will, and the practical effect of the will as executed. Proving that the decedent was mentally ill or under the influence of alcohol or drugs at the time the will was made are ways to establish incapacity.
• Undue Influence. If at the time the will was made, the decedent did not exercise his or her judgment in making the will, but rather made the will according to the wishes of another, the will may be found invalid on the grounds of undue influence. Coercion, duress and fraud are examples of undue influence.
• Improper Execution. A will must be properly executed in order to be valid. This requires that the creation and the execution of the will conform to the state's requirements, which can include the will having to be in writing and signed by the person making the will (the testator) and that the will be witnessed or notarized.
• Forgery. A will can be found invalid if any portion of the will, including any terms of the will or the signature of the testator or the witnesses, are determined to be forged.

There is a limited amount of time set by state statute to challenge the validity of the will on one of these grounds. If the validity of a will is successfully contested, the probate court may:

• Disallow only that part of the will that is successfully challenged
• Admit an earlier valid will (if one was made) in its place
• Determine that the decedent died intestate and distribute the assets according to the state's intestate succession laws, which are the legal default rules for estates without a will

Conclusion

The consequences of a will contest are significant for all of the parties involved. If there is the possibility of a will contest, contact our firm to schedule a consultation with an attorney experienced in probate and estate administration who can help to ensure that your rights are protected throughout the process.

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