Almost all of the signed, dated and witnessed Last Will and Testament documents presented to the court make it through the probate process without any issues.
Courts always prefer to stick to the Last Will and Testament of a deceased person as written. Only in rare cases is it willing to deviate from the prescribed instructions written in the will.
But what happens when a will looks to be incorrect or unfair?
The process of challenging what’s written in a person’s will is known as contesting a will.
Contesting a will is one of the most difficult legal processes out there, and whether it’s possible depends on the laws of the state in which the court executes the will.
When can you contest a will, and what’s involved in the process? We’ll shed light on this complicated process below.
What Is Contesting a Will?
When you contest a will, you are not taking exception to a particular statement or clause.
Contesting a will seeks one of two remedies. Either it declares the will void, which means the law will consider the deceased to have died without a will, or it declares it void in favor of a previous version of the will.
Who Can Contest a Will?
You can’t burst into the courtroom to contest any will.
Basic probate laws allow “interested persons” to contest a will. An interested person includes the deceased person’s:
It could also be another party who has a claim against or a right to the estate in question.
Typically, those who contest a will are those who:
- Benefitted from a previous will but not the present one
- Benefited from as subsequent will
- Intestate heirs (heirs when an estate has no estate plan)
Many states also require you to have “standing.” Typically, you need to be named on the will or be someone who would lose or inherit property if you successfully contest the will.
In other words, you need to have something to gain or lose personally by issuing a challenge. You can’t challenge a will because you think the deceased named the wrong executor or do it out of spite regardless of whether you could benefit from the process.
Do You Need to Be a Relative?
No, your status as a relative does not matter when contesting a will. You can challenge as a beneficiary even if you are not a relative (i.e., friends, charities).
What Are the Grounds for Contesting a Will?
State law determines whether you have grounds for contesting a will. Most states share the same grounds in common but may add or remove other less common grounds.
The most commonly found grounds for contesting a will include:
- Undue influence
- Lack of capacity
- Formalities not followed
Each requires establishing a burden of proof and a legal argument, so you’ll need a will attorney to make your argument.
Here’s what each typically requires.
If you believe that the will in place came to being through undue influence, and you qualify as a person who can challenge the will, then you may contest it.
Undue influence doesn’t mean another party provided input that you think was unfair.
It usually requires an unreasonable of influence through threats, separation or isolation, or abuse that forces the deceased to sign a will that benefits that party specifically.
Proving undue influence is difficult because the main party to the influence is deceased. Additionally, legal precedent requires a considerable amount of evidence. The court will want to hear from relatives, caregivers, lawyers, and relatives to determine the nature of the relationship.
Additionally, the court must determine whether the undue influence resulted in violating the deceased’s true wishes.
Fraud occurs when the signer doesn’t realize they are signing their will and no one informed them that the document was their last will and testament. It can also occur when a beneficiary makes a false statement to the deceased that caused them to change their will to benefit the beneficiary.
Lack of Capacity
Lack of capacity is grounds for contesting a will when the deceased was not legally of sound mind when they created the will.
Being generally unhealthy or developing a disease later in life doesn’t count as grounds. Lack of capacity only applies at the time of signing the will.
For example, if the deceased signed a will after a doctor confirmed that they were in the end stages of dementia or Alzheimer’s, you could contest the will on the grounds of lack of capacity.
Formalities Not Followed
If deceased created a will without following the legal formalities set out by the state, then it’s possible to contest it.
For example, if the will was written on a computer document or a scrap of paper, then some states may not declare the will valid. State law often requires a will to be signed in front of two witnesses and include a clause that shows the signor knew they were signing a will.
What If There’s a Will Contest Provision?
If the will includes a no contest provision, you cannot contest the will no matter what your beliefs are about the nature of the will. If you do, you stand to lose any inheritance provided by the estate.
The provision aims to stop any unnecessary legal battles, but some states will ignore the rule if there are valid grounds (e.g., fraud, undue influence, lack of capacity).
Should You Contest a Will?
Contesting a will isn’t easy, and few who do it are successful. But that doesn’t mean you shouldn’t try.
If you have reason to believe that you did not receive the correct inheritance or property because something went wrong in drafting the will, then you should contest it.
You can challenge the will if you are an interested party and you can demonstrate the grounds upon which you intend to contest the document.
Do you think you need to contest a will? Click here for our guide on what to do next when challenging an estate.