Contesting the Will

A will contest is a challenge to a will, usually initiated by a family member or a beneficiary who feels slighted by the testator’s choice of property distribution. Valid grounds for a will contest include claims that it was improperly executed (e.g., the testator did not sign it), the testator lacked testamentary capacity (e.g., he did not understand what he was doing), it contains a mistake, or it is the result of fraud, undue influence, duress, or insane delusion.

What happens if a challenge to a will is successful?

It depends on the reason for the will contest. If the will is found to be invalid because it does not conform to the state’s requirements or because the testator was not mentally competent when it was made, then the property will pass under intestacy as if the will never existed. But sometimes only part of the will is found to be invalid. For example, if a beneficiary is found to have coerced the testator into leaving her part of his estate, then only the gift to that beneficiary is invalid and the property falls into the residuary estate (if there is one) or under intestacy; the rest of the will remains valid.

I don’t want my family to fight over my will. Can I insert something in my will that causes anyone who challenges the will to lose his gift?

Yes. This is called a “no-contest clause,” and has the effect of causing the beneficiary to forfeit his gift if he challenges the will. But beware – many states will allow the beneficiary to challenge the will and still keep his gift as long as his challenge is based on probable cause (i.e., an allegation of fraud or mistake).

I left my will on my desk and my family saw it. They are not happy with how I divided my belongings and want to formally contest the will in court. Can they do that?

No. Your will has no effect until you die; therefore, your family (and any other named beneficiaries) has no interest in it until then. They will have to wait until the will is probated on your death before they can contest any of the provisions. And they may have problems contesting it on your death if they have no valid grounds to do so – they cannot contest it merely because they are unhappy with the distribution.

I’m not happy with the way my mother distributed her estate. Can I contest the will?

Not if your mere dissatisfaction is the sole ground for contesting it. A court will not entertain a will contest unless it is based on an assertion of improper execution, lack of testamentary capacity or insane delusion, lack of knowledge of the will’s contents by the testator, mistake, or some type of wrongdoing by a third party, such as fraud or undue influence.

My friend’s will left her diamond ring to her “good friend, Mary.” I believe that she meant me, but she has another friend Mary who claims that she is entitled to the ring. If I contest the will, who will win?

It depends on how persuasive you are in proving to the court that your friend intended that the ring belong to you. The will is ambiguous in that it doesn’t specify which Mary your friend meant, so the court will consider any evidence as to whom she meant, including anything she may have said to you or anyone else regarding the ring.

My daughter suspects that her children unduly influence her husband to leave his entire estate to them, attempting to disinherit her. She is too upset to take the matter to court. Can I do it for her?

No. Only a person who has a financial interest in the estate can file a will contest. This usually means only the persons named in the will and anyone who would have inherited if the person had died without a will. Since you do not qualify under either scenario (you are not named in the will and would not have been an intestate heir), you cannot file the contest for her; she will have to do it herself. Note that if she chooses not to file the contest she can still renounce the will and claim her elective share.

There is a time limit for filing a will contest, which varies by state law. If she is uncertain as to whether she wants to take action, she should at least research the state’s specific law to find out how long she has to make up her mind.