Contesting a will is the process of challenging a will submitted to probate under one or more legal grounds with the goal of reaching a different outcome than the one expressed in the will.
Contesting a will is very difficult, and most will contests are not successful. If you are considering contesting a will, you may wish to speak with an estate planning attorney who can help you better assess the likelihood of prevailing in your claim.
Who Can Challenge a Will
Only a person with “legal standing” can contest a will. Generally, you have legally standing if:
- You are a beneficiary under the will
- You were a beneficiary under a prior will
- You are the beneficiary under a will made after the current one submitted to probate
- You would inherit if a will did not exist and the state’s intestacy laws applied
When Can You Challenge a Will
A person with legal standing who does not accept the gift(s) you made in the will may contest the will on one or more grounds in the state probate court:
- Lack of testamentary capacity: argues that the person who made the will was not of sound mind at the time of drafting
- Fraud, undue influence, or duress: argues that the person making the will was pressured, forced, or otherwise coerced into making the will, or that the will has been tampered with
- Revocation of will: argues that the will appearing before the court is not the most recent, effective will, or that the will appearing before the court was destroyed or intended to be destroyed
- Ineffectiveness of the will based on contents: argues that the will seeks to pass assets in a way that runs contrary to statute (i.e., law). For example, a person cannot disinherit a spouse, who has a right to a minimum elective share
Verbal promises or commitments such as “Grandma always told me that she’d give me her necklace when she passed away” are insufficient grounds to contest a will.
How to Contest A Will
If you have legal standing and grounds to challenge the will, you can contest the will by filing a petition with the probate court in which the will is being administered. The amount of time you have to file the objection can vary depending on your state from a few weeks to over a year. Review your state statutes to ensure that you are within the period for contesting. In addition, make sure that you are using an acceptable petition form by contacting the local court or downloading one from its website.
Challenging a will is very difficult, and most will contests are not successful. The person contesting the will has the burden of establishing lack of testamentary intent or capacity, undue influence, fraud, duress, mistake or revocation. You may want to engage an estate planning attorney to help guide you through the process and represent your case.