Definition and Example of Contesting a Will
Contesting a will is the process of disputing the validity of a last will and testament after the testator (the person who made the will) dies. Typically, a will is contested by someone who believes they should have been a beneficiary.
“A lot of people think, ‘I don't like the terms of the will’ or ‘That's not what Mom or Dad told me, so I'm going to challenge the will.’ But it’s not so simple,” said Patricia Davidson, a Massachusetts-based attorney who helps families resolve issues involving wills, trusts, and real estate.
To contest a will, Davidson said, you must have evidence to back up your claims, not just a hunch, suspicion, or sense of unfairness. Contesting a will isn’t cheap, and requires a solid argument. Vague feelings of unfairness won’t work before a judge.
- Alternate name: Challenging a will
For example, say your mother remarried in the last months of life to her in-home nurse, who didn’t let you visit your mom. Upon her death, you read her will and find that it leaves her entire estate, including her home, jewelry, and cash, to her nurse and spouse. Because you believe you should have been a beneficiary, you might consider contesting the will.
How Contesting a Will Works
The grounds and process for contesting a will depend on your state’s laws, but the concepts are similar. When the will is filed in probate court, interested parties receive notice. Those parties must object within the time period provided by the jurisdiction’s laws. The court then determines if the will is valid and determines heirs, beneficiaries, worth, and assets.
Some states have a statute of limitations for contesting a will. For example, in Washington it’s four months after the will is filed in probate court, and in Illinois, it’s six months.
After a parent dies, mixed emotions manifest themselves in complicated ways, Davidson said. “Will contests are often rooted in misunderstanding, guilt, jealousy, and simmering sibling rivalry.”
Who Can Contest a Will?
First, you need to determine whether you can legally contest a will. Typically, the only people who can legally challenge a will are those who would have otherwise benefited—for example, someone named in a prior will or who, under state law, would have received assets if no will existed.
For example, in Oklahoma, if a will doesn’t name a child or grandchild, they may be able to argue that they were forgotten—not intentionally excluded—and may have rights to a portion of the estate.
Children of the deceased person are the most common objectors, Davidson said. Will contests are also common when “the decedent had no kids and extended family members litigate their alleged claims to the estate,” she said.
Reasons To Contest a Will
“Most will contests arise out of complicated family dynamics, and it can be a challenge for a lawyer to balance emotional and psychological issues with legal reality,” said Davidson. “Often in these cases, parties are not just pursuing assets, but challenging a whole power dynamic, particularly if one sibling is designated the personal representative or executor.”
According to Davidson, the underlying motivation to contest a will may include:
- Greed or envy
- Lack of understanding about how estate plans work
- Anger at other beneficiaries (such as siblings)
- Contradictions between what the decedent said and what the will says
If you had a difficult or estranged relationship with the deceased, it might not be financially smart to contest the will, said Richard M. Ricciardi Jr., a Florida-based attorney focused on elder law and estate planning. It could be easy for other parties to state that, yes, your dad left you out of the will on purpose.
But to be successful, you must have legal grounds to contest a will based on state law and provide evidence for your claim. For example, you might need to prove:
- The testator lacked the intent or capacity to draft the will
- The testator was under undue influence or duress from a third party
- Fraud or mistakes occurred
- Prior wills weren’t correctly revoked
- Other circumstances that led to the will being void
In Ricciardi’s practice in Florida, most cases of contested wills involve “undue influence,” often after a new beau appears late in a person’s life and a will is amended. He said that lack of capacity is more challenging to prove in Florida; even if the deceased was incapacitated or experienced dementia, they might have had a “lucid moment” while creating the will.
Next Steps: Evaluate Your Case With a Lawyer
“Consulting with a lawyer is always the right thing to do,” Davidson said. “A lawyer can explain circumstances where someone can and cannot try to challenge a will, the process for doing so when appropriate, how long the process could take, the cost, and potential alternatives to shepherd resolutions, short of going to trial.”
“You can't do it yourself,” warned Ricciardi about contesting a will. “These are usually extensive cases, and turning over a will is not easy.”
Once you speak with a lawyer, a discovery process begins, during which the lawyer gathers evidence supporting your claim. Depositions will be taken. Each side will provide records and proof of its position.
The next steps depend on your case, the parties and legal teams involved, and your state. Most of Davidson’s cases in Massachusetts don’t go to trial, as she usually tries to reach a compromise. Most cases ultimately settle.
“Mediation is a great tool to help lawyers help their clients compromise, stop the bleeding of legal fees, and mitigate the risk of court,” Davidson said. “Mediation gives parties more control in a resolution.”
If the case proceeds to trial, a judge hears the evidence and makes a decision.
What Does It Cost To Contest a Will?
In general, prepare to spend at least $5,000 to $10,000 to contest a will, Ricciardi said, with many costs stemming from extensive research and behind-the-scenes work. A complaint is rarely settled in just a few weeks.
Some attorneys may work on contingency—and aren’t paid unless you are—but that would depend on having an extremely strong case. “With a personal injury from a car accident, you know you’ll probably get something, but contesting a will isn’t that [kind of] situation,” Ricciardi said.
Your success in challenging a will depends on the facts and the strength of your case, Ricciardi said. “Your chances aren’t 50-50, as the burden is on you to prove your case, and your star witness is dead.”
- Your ability to contest a will often depends on your relationship to the deceased.
- There are limited legal arguments for contesting a will, and you must be able to prove the validity of your claims.
- Contesting a will isn’t easy and may cost at least $5,000 to $10,000.
Frequently Asked Questions (FAQs)
What is the statute of limitations on contesting a will?
The statute of limitations is how long you have to contest a will; after that period expires, you can no longer contest the will. The statute of limitations varies by state. In Illinois, for example, you can contest a will up to six months after its admission into probate.
What is the difference between contesting a will and probating a will?
Probating a will is the court process of proving a will’s validity then legally administering the will, paying debts, and distributing the deceased’s estate to heirs and beneficiaries. Contesting a will is the legal process of challenging the will’s validity.
What is the cost of contesting a will?
Costs vary immensely by situation and location. One study of 443 recent probate administrations from San Francisco found that wills that were contested had average extraordinary fees ranging from $16,739 to $35,805. However, the study’s authors note that these findings may not be generalizable to other parts of the country because of San Francisco County’s higher median home values and lower poverty levels, and California’s probate fee structure.
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