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Five Things You Need to Know About Contesting a Will

March 31, 2023

If someone objects to a will, they may be able to contest its validity in court. However, there are specific rules that limit who can contest a will, when, and under what circumstances. There are also procedural requirements and deadlines that must be adhered to when bringing and proving a claim. Working with an experienced attorney can help ensure you comply with the law and that your interests are protected in court whether you are contesting a will or protecting a will from an objection. If you believe you have a legitimate reason to contest a will or oppose another party’s claim, these are a few of the key issues you should discuss with an estate attorney.

Who Can Contest a Will? 

A person must have “standing” to contest a will. That means only interested parties can bring a claim. “Interested parties” include anyone who would have inherited had the deceased died without a will. For example, if a mother with three children passes away without a will, all three of her children would be interested parties in her estate. However, if she left a will splitting her estate between only two of her children, the disinherited child would have standing to challenge the will because she would have inherited if there was no will, making her an interested party. 

Additionally, a fiduciary (i.e., executor or trustee) who was replaced by a codicil and not a new complete will also has standing to contest the will.

What Are the Grounds for Contesting a Will?

Simply being unhappy with what a will states is not a good cause to bring action. Generally, there are three grounds for contesting a will.

  1. Improper execution of the will: A will is not executed properly on its face if there were no witnesses to the decedent’s signing of the will; the witnesses were “interested”, meaning they were beneficiaries under the will; or there were substantial errors in the drafting of the will. In addition, improper execution occurs if the decedent’s signature on the will was forged. 
  2. Undue influence/duress: This is the most common reason people consider contesting a will. Typically, family members believe that someone in a position of power influenced the decedent to sign a will benefiting the person and adversely affecting the decedent’s other family members. Proving undue influence requires showing that there was a motive and opportunity to influence the decedent and that there was an actual exercise of undue influence. 
  3. Lack of mental capacity: If the decedent was struggling with dementia or Alzheimer’s at the time the alleged will was executed or lacked mental capacity due to some other reason, there may be grounds to question whether the decedent had the requisite ability to understand what he or she was signing.

When Can You Contest a Will? 

Once a decedent’s will is offered for probate, the person contesting the will must file an objection with the court. Importantly, there are strict deadlines to file an objection that cannot be missed or an interested party’s ability to object may be waived.

How Do You Obtain Evidence to Contest a Will?

After objecting to a will, the discovery process begins. You have the right to request documents relevant to your objections. This can include medical records, prior wills signed by the decedent, financial information, and other evidence. 

You may also have the opportunity to examine witnesses. For example, if a mother with three children had a will that gave her entire estate to a much younger man she had recently started dating, you would want to question him about his relationship with the decedent. 

Do You Need an Attorney to Contest a Will?

Will contests are very fact and date specific. You could waive your ability to object because you missed a deadline, or your challenge to the will could fail because you didn’t thoroughly investigate certain facts and circumstances. As a result, it is important to speak with a lawyer as soon as possible about your options.

Our attorneys regularly represent clients in trust and estate litigation matters, including will contests. Contact us to learn how we can help you with your case.


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