How to Contest a Will

A blank will form that will need to be completed in full to avoid future contests to it.
••• Image Source / Getty Images

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 friend's will properly reflects their final wishes, then beware. Contesting a will is emotionally draining and can cost a considerable amount of time and money. But if you choose to contest a will, read on to see the three steps you need to take.

What Is a Will Contest?

If you're surprised by the contents of a loved one's will after their passing, you might choose to contest their will. To do so, you can formally challenge their final wishes in probate court, usually with the help of a lawyer that specializes in this type of law.

If you feel you've been unfairly excluded from the will or deserve a larger portion of the inheritance, you might decide to contest the will. However, certain conditions must be met before you are eligible to do so. Meeting with a lawyer can also help you determine if you have a strong case to make.

Determine If You Have Standing

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. 

In other words, 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.

Before formally contesting a will, see if it includes a "no contest" clause. These terms state that if you challenge the will and lose, you inherit nothing. If you're contesting the will because you think you should inherit more than you've been offered, you could walk away with nothing if the court rules against you.

File in a Timely Manner

Even if you have proper standing to file a will contest, you must also file it within a set time frame. 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 months 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.

Review the 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 typically four grounds for contesting a will:

  • The will wasn't signed with the proper legal formalities
  • The decedent lacked the mental capacity to make a will
  • The decedent was unduly influenced into making a will
  • The will was procured by fraud

Proving any one of these grounds is very difficult, so before proceeding any further, assess the evidence you have to back up your suspicions. It may also be wise to consult with a probate attorney who specializes in estate litigation to determine if you have enough evidence to contest a will.

Not sure where to find a reputable lawyer? Check your state's Bar Association directory for legal help in your area.

Characteristics of a Successful Will Contest

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

  • The will is a do-it-yourself will: When someone writes their own will, some of the legal formalities required to make it valid may have been overlooked. Another common problem with a DIY will is that it may not address all of the "what ifs" that could happen. If a situation occurs that isn't laid out in the will, you may be able to make a successful case against the will's validity.
  • The will's creator was isolated from family and friends: A common scenario in successful will contests is when the will's creator is systematically isolated from family and friends by the primary beneficiary of the will, leading to it being invalidated based on undue influence.
  • The capacity of the will's creator is questioned: While it's difficult to prove that someone lacked the capacity to make a will exactly at the time they signed it, there could be medical evidence or another paper trail that shows that they didn't have the requisite mental ability to make a will.