Who Can Contest a Will?

Find out if you have standing to contest a loved one's will

Not everyone can contest a will. A lawsuit brought to challenge the validity of a last will and testament can only be filed by certain people who would be personally and financially affected by the will's terms and provisions if it were to be accepted by the court as is. In legal terms, these people are said to have "standing." So who has legal standing to file a will contest?

Disinherited Heirs-at-Law

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An heir-at-law is someone who is closely related to the decedent and who would have received a share of the estate if he had died without a will. When someone dies without a will, his property passes to these individuals in a process called "intestate succession." In most states, this means his spouse or direct descendants, such as his children or grandchildren, inherit first. More distant family members would only inherit if the decedent wasn't married and no living children or grandchildren. 

Heirs-at-law have standing to contest a will. If the decedent is survived by three children but only two are provided for in his will, the third child should have legal standing to file a will contest. But this doesn't necessarily mean he would win the case. He can't challenge the will simply because he has standing and he was not named in it. He would have to establish that the deceased didn't cut him out of the will intentionally or that the will is not valid for some other reason. Perhaps the deceased was under duress or mentally incapacitated at the time he wrote it. 

The will might subsequently be thrown out due to its invalidity, and the estate would then be distributed as though the deceased had died intestate or without a will. 

Beneficiaries and Fiduciaries in a Prior Will

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Any person or entity named in an older will would have sufficient legal standing to contest a more recent will if he has subsequently been cut out of the more recent document or if his share of the estate has been reduced. But the same caution applies: These people would have to establish that the subsequent will is invalid for some reason.

Likewise, if the individual was named as fiduciary or executor of the estate in the testator's first will, but he's been replaced in a subsequent will, he should have adequate standing to challenge the more recent last will and testament. 

Who Can't File a Will Contest?

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The bottom line is that not everyone involved in the testator's life will have legal standing to contest the validity of his will. Even if you suspect that a loved one's will or a friend's will is invalid, you most likely do not have legal standing to file a challenge if you weren't named as a beneficiary in another will or you're not an heir-at-law. Even if you have standing, the burden of proof is on you to establish to the court's satisfaction that the will in question should be declared invalid for some reason. Having standing is one thing, but you still require a supportable legal reason to challenge the will. 

"No Contest" Clauses

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Another potential complication is that some wills include "no contest" clauses that state that if a beneficiary files a will challenge, he'll lose the inheritance that the will gives him. Of course, this would only happen if he loses the will contest in court. Otherwise, the court's verdict would prevail. And if a beneficiary has been cut out of the will entirely, he really has nothing to lose by challenging it.

Not all states will enforce no contest clauses so check with an attorney if you have reason and standing to contest a will that contains one of these clauses. 

What Should You Do?

Will contests are a complex area of law. If you're still not sure about your legal rights with regard to challenging the validity of a loved one's will, consult with a probate lawyer who specializes in will contests to find out if you have legal standing and possible grounds—a supportable reason why the will should be overturned.