What Is a Will Contest and When Can It Be Filed?
The Process of Contesting a Will
A will contest is a type of legal process brought to challenge the validity of a last will and testament. Rules for will contests can vary from state to state, but you can usually file such a lawsuit at one of two points in time.
The Process of Contesting a Will
A disgruntled heir or beneficiary cannot simply approach the court and say, "I don't like this will." He must have standing and he must have grounds.
Standing means that he has a financial interest in the estate. He's named as a beneficiary or he is an heir-at-law, someone entitled to inherit from the decedent if he had not left a will. Even a creditor can contest a will if the decedent owed him money and the existing terms of the will would prevent him from being paid.
Grounds are a legally supportable reason why the will should not be honored. The decedent may not have had sufficient mental capacity at the time he wrote the will to understand what he was doing. Other common grounds for contesting a will include undue influence, fraud or a procedural mistake, such as that it wasn't witnessed by the number of people required by state law. If a more recent will has been located indicating that the decedent might have intended to revoke the first one, this may be grounds for a will contest.
A Caveat Can Be Filed Before Probate Begins
A will can typically be contested before it's admitted to probate or during the probate process, depending on state law.
A pre-probate legal action is called a caveat. Filing a caveat puts the public, and more importantly the probate court, on notice that the decedent's last will and testament should not be admitted to probate. The person filing the caveat, called the caveator, will then receive notice and a copy of the petition for probate administration when the will is presented for probate. The will cannot be admitted to probate until the caveator has had an opportunity to respond to the petition, typically in a hearing where he can establish his reasons why he thinks the will should not be honored.
The Will Can Be Challenged After Probate Opens
The personal representative or executor of the estate has the legal authority and obligation to settle the decedent's estate after the will has been admitted to probate. He will begin the steps necessary to complete the probate process, beginning with sending notification of the probate proceeding to all beneficiaries named in the will. Depending on state probate laws, this legal notice will typically limit the time a beneficiary has to challenge or contest the validity of the decedent's will. A beneficiary usually has only 30 to 90 days.
The personal representative may also elect or even be required by state law to send the legal notice to anyone not named in the will who might potentially file a will contest, including heirs-at-law or beneficiaries or fiduciaries named in an older will who have been cut out of the newer one.
Preventing a Will Contest
A handful of states including Alaska, Arkansas, Delaware, North Dakota and Ohio allow a person who makes a will or trust to "pre-validate" it while he is still alive. Doing this can prevent the will from being contested after the person dies.
Some wills include "no-contest clauses" providing that if a beneficiary challenges the will and loses, he will not receive even the bequest left to him in the will. He would come away with nothing. Not all states honor this type of provision, however, and if someone has been left out of the will entirely, he has nothing to lose.