Learn How to Contest a Will

Will document
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A Last Will and Testament is a legal document that specifies who gets a deceased person's property and who will be in charge of settling the estate.  A will contest is a special type of lawsuit that seeks to invalidate a deceased person's will.

If you're considering filing a will contest because you don't believe a family member's or friends will properly reflects their final wishes, then beware - will contests are emotionally draining and very costly in both time and money.

Here are 3 steps to filing a will contest.

If you still think you want to file a will contest despite all of the costs involved, then below are the three steps you need to take to file one.

Determine if You Have Standing to Contest the Will. 

Not everyone can contest a will.  In legal terms, only a person or entity, such as a bank or charity, that has standing can contest a will.  In the context of a will contest, standing means that the party involved in the lawsuit will be personally affected by the outcome of the case.  It means that the person contesting the will must either be an intestate heir or a beneficiary named in the decedent's prior will.  With regard to an entity, it must have been named as either a beneficiary or a fiduciary in the decedent's prior will.  If you don't have standing, then you can't proceed with a will contest.

Determine if You Can Timely File the Will Contest. 

Even if you have proper standing to file a will contest, you must also file it in a timely manner.

  State laws where the decedent lived at the time of death dictate the time limit for filing a will contest, which can be as short as a few weeks to as long as a few years.  Only a limited amount of time is given to file a will contest so that the payment of final expenses and transfer of property to the beneficiaries can be expedited.

  Otherwise, an estate would never be completely distributed for fear that a will contest may be filed in the future.  If you've waited too long to file a will contest, then you're time-barred from filing one.

Determine if You Have Grounds to Contest the Will. 

Even if you have standing and time to contest the will, you must also have sufficient grounds to contest it.  There are four grounds for contesting a will:  (a)  The will wasn't signed with the proper legal formalities; (b) The decedent lacked the mental capacity to make a will; (c) The decedent was unduly influenced into making a will, and (d) The will was procured by fraud.  Proving any one of these grounds is very difficult, so before proceeding any further, you must assess the evidence you have to back up your suspicions.  You'll need to consult with a probate attorney who specializes in estate litigation to determine if you have enough evidence to contest a will.

Fact Patterns That May Lead to a Successful Will Contest

Invalidating a will isn't easy because the presumption is that if a person took the time to make a will, then it's valid.  Nonetheless, there are certain fact patterns that may lead to a successful will contest.

  • The will is a do-it-yourself will.  When a Testator writes their own will, some of the legal formalities required to make a valid will may have been overlooked.  Another common problem with a do-it-yourself will is that it may not address all of the "what if's" that could happen, which is demonstrated in the Florida case of Aldrich v. Basile.  (Note that in Basile, the court held that the will was valid but didn't address all of the Testatrix's property, which caused the excluded property to pass under Florida's intestacy laws instead of under the terms of the will.)
  • The Testator is isolated from family and friends.  A common scenario in successful will contests is when the Testator is systematically isolated from family and friends by the primary beneficiary of the Testator's will, leading to it being invalidated based on undue influence.
  • The Testator's capacity is questioned.  While it's difficult to prove that a Testator lacked the capacity to make a will exactly at the time they signed it, there could be medical or other evidence that is discovered which shows that the Testator didn't have the requisite mental ability to make a will.