How to Contest a Will: Legal Grounds and Procedures

Understanding the valid grounds for contesting a will and the legal process involved in challenging inheritance distributions.

Contesting a will is a complex legal process that challenges the validity of a deceased person's will. While the law generally presumes that a properly executed will reflects the genuine wishes of the deceased, there are circumstances where a will may be invalid or improperly influenced. This guide explains the legal grounds for contesting a will, the procedures involved, and important considerations before pursuing this challenging legal action.

Who Can Contest a Will?

Not everyone has legal standing to challenge a will. Generally, you must be one of the following to have standing:

Beneficiaries named in the current will who would receive more under a prior will or intestacy laws
Beneficiaries named in a previous will who were excluded or received less in the current will
Heirs who would inherit by law if there were no will (typically spouses, children, and sometimes other relatives)
Creditors with valid claims against the estate in some jurisdictions

Additionally, you must have a financial interest in the outcome—meaning you would benefit financially if the will contest succeeds. Simply disagreeing with the deceased's choices is not sufficient grounds for contesting.

Valid Legal Grounds for Contesting a Will

Will contests must be based on specific legal grounds. The most common grounds include:

1. Lack of Testamentary Capacity

For a will to be valid, the testator (person making the will) must have had the mental capacity to understand:

The nature and extent of their property
The natural objects of their bounty (who would normally inherit their property)
The disposition they're making in their will
How these elements relate to form a coherent plan

Conditions that may impair testamentary capacity include dementia, Alzheimer's disease, severe mental illness, or being under the influence of medications that impair cognition. However, momentary confusion, eccentricity, or even some mental decline do not automatically invalidate a will. The key question is whether the testator had sufficient mental clarity at the time they executed the will.

2. Undue Influence

Undue influence occurs when someone exerts such pressure on the testator that it overpowers their free will and causes them to make dispositions they wouldn't otherwise have made. This often involves:

A confidential relationship between the influencer and the testator (caregiver, family member, advisor)
A testator who is vulnerable to influence due to physical or mental weakness
The influencer actively participating in procuring the will
The influencer receiving an unexpected or disproportionate benefit

Undue influence is more than simple persuasion—it must effectively substitute the influencer's will for that of the testator.

3. Fraud or Misrepresentation

A will can be invalidated if the testator was deceived through fraud or misrepresentation. This may occur when:

Someone tricks the testator into signing a document they don't realize is a will
Someone provides false information to the testator that influences their decisions about beneficiaries
A person misrepresents the character or conduct of a natural beneficiary to cause their disinheritance

For example, if someone falsely tells an elderly parent that their child has stolen from them to cause the parent to disinherit that child, this could constitute fraud.

4. Improper Execution

Each state has specific requirements for how wills must be executed to be valid. Common requirements include:

The will must be in writing
The testator must sign the will or direct someone else to sign on their behalf in their presence
The signing must be witnessed by two or more witnesses who also sign the will
The witnesses must be disinterested (not beneficiaries under the will in many states)

If these formal requirements aren't met, the will may be deemed invalid. However, many states now permit "harmless error" rules that may excuse technical defects if there's clear and convincing evidence the document was intended to be the testator's will.

5. Revocation

A will contest may be based on evidence that the will was revoked by:

A later will or codicil that expressly revokes the earlier document
A physical act of destroying the will with the intent to revoke it
Operation of law, such as in some states where divorce automatically revokes provisions for a former spouse

In these cases, the petitioner may argue that a different document should be recognized as the valid will or that intestacy laws should apply.

6. Forgery

Though less common, forgery is a serious ground for contesting a will. This involves allegations that:

The signature on the will is not actually the testator's
Pages in the will were substituted after signing
The entire document is fraudulent

Forgery claims typically require expert testimony from handwriting analysts and other forensic experts.

The Will Contest Process

The procedure for contesting a will varies somewhat by jurisdiction but generally follows these steps:

1. Initial Investigation and Consultation

Before filing a formal contest, you should:

Obtain a copy of the will and any previous wills
Gather information about the circumstances surrounding the will's creation
Review relevant medical records if capacity is at issue
Identify potential witnesses with knowledge of the testator's condition or the will's execution
Consult with an attorney who specializes in probate litigation

2. Filing the Contest

If the investigation supports a will contest, the next step is filing formal objections with the probate court. This typically involves:

Filing within the statutory deadline, which is often relatively short (a few months to a year after probate begins)
Drafting and filing a petition or caveat that details the specific grounds for contesting the will
Paying any required filing fees
Serving notice on all interested parties, including the personal representative and all beneficiaries named in the will

3. Discovery Phase

After filing, both sides engage in discovery to gather evidence, which may include:

Written interrogatories (questions) to be answered under oath
Requests for production of documents, including financial records, medical records, and correspondence
Depositions of witnesses, including the will's drafting attorney, witnesses to the will, medical providers, family members, and caregivers
Subpoenas for records from third parties

4. Expert Witnesses

Depending on the grounds for the contest, expert witnesses may be necessary, such as:

Medical experts to testify about the testator's mental capacity
Psychiatrists or psychologists to address vulnerability to undue influence
Handwriting experts for forgery claims
Estate planning attorneys to testify about proper practices and procedures

5. Mediation and Settlement Negotiations

Many will contests are resolved through settlement negotiations or formal mediation. Reasons for settlement include:

The high costs and emotional toll of litigation
Uncertainty of outcome at trial
The desire to preserve family relationships
Protection of privacy, as probate litigation creates public records

Common settlement terms might include a fixed sum payment to the contestant, a percentage division of the estate, or specific bequests to certain parties.

6. Trial

If settlement isn't possible, the case proceeds to trial, which may be before a judge or jury depending on the jurisdiction. At trial:

Both sides present opening statements
Witnesses testify and are cross-examined
Documentary evidence is presented
Expert witnesses provide opinions
Closing arguments summarize each side's position

The burden of proof typically falls on the party contesting the will, often by the standard of "preponderance of the evidence" (more likely than not), though some jurisdictions require "clear and convincing evidence" for certain claims.

7. Appeals

After a verdict, either party may have the right to appeal to a higher court if they believe legal errors occurred during the trial. Appeals focus on legal issues rather than factual determinations and can significantly extend the timeline for resolution.

Potential Outcomes of a Will Contest

Will contests can result in several different outcomes:

Will upheld - The court determines the will is valid, and it is admitted to probate as written
Will invalidated in its entirety - If the entire will is found invalid, one of the following occurs:
- A prior valid will is admitted to probate
- If no prior valid will exists, intestacy laws determine inheritance
Partial invalidation - In some cases, only certain provisions may be invalidated while others remain in effect
Settlement - The parties agree to a compromise distribution that may differ from either the will's terms or intestacy

Important Considerations Before Contesting a Will

No-Contest Clauses

Many wills contain "no-contest" or "in terrorem" clauses that disinherit beneficiaries who challenge the will. These clauses state that if a beneficiary contests the will and loses, they forfeit whatever inheritance they would have received under the will.

The effectiveness of these clauses varies by state:

Some states fully enforce no-contest clauses
Other states won't enforce them if the contestant had "probable cause" for the challenge
A few states don't enforce these clauses at all

If you're named in the will and considering a contest, carefully evaluate how a no-contest clause might affect you.

Costs and Timing

Will contests have significant implications in terms of:

Legal costs - Contests often cost tens of thousands of dollars, sometimes exceeding $100,000 for complex cases
Time delays - The administration of the entire estate may be delayed while the contest is pending, which can take years
Emotional costs - Will contests can create or deepen family rifts and cause significant stress

It's important to perform a cost-benefit analysis before proceeding with a contest, considering both the potential recovery and the costs involved.

Standard of Care for Professional Advisors

Estate planning attorneys and other professionals involved in will preparation should take preventive measures to minimize the risk of successful contests, including:

Thoroughly documenting the testator's capacity through detailed notes
Meeting with the testator alone to verify independence from potential influencers
Asking probing questions to confirm understanding of the will's provisions
Recommending medical evaluations when capacity might be questionable
Video recording the will signing in appropriate cases
Taking extra precautions with anticipated unequal distributions among natural heirs

Alternatives to Will Contests

In some situations, alternatives to formal will contests may be available:

Family settlement agreements - All beneficiaries and heirs can agree to distribute assets differently than specified in the will
Disclaimers - Beneficiaries can renounce their inheritance, which may result in it passing to other family members
Spousal elective share - In many states, surviving spouses can elect to take a statutory percentage of the estate instead of what was left in the will
Construction proceedings - When a will's language is ambiguous, the court can be asked to interpret it rather than invalidate it

These alternatives may achieve some objectives without the high costs and acrimony of a full will contest.

Contesting a will is a serious step that should only be undertaken with thorough legal advice and careful consideration of the grounds, evidence, costs, and potential outcomes. While successful contests can rectify genuine injustices, they also consume significant resources and can permanently damage family relationships. When contemplating a will contest, balancing legal rights with practical and personal considerations is essential for making an informed decision.