How to Contest a Will

A will is designed to distribute property and assets in the way in which the deceased person intended them to be distributed. Accordingly, a will that is properly executed and that was created when the person was in her right mind and without undue influence is legally binding. 
 
That said, there are times when a will is challenged in court. A will cannot be challenged simply because someone is unhappy with its contents and feels that the property should have been distributed differently. It can only be challenged if the challenger has standing to bring the matter to court, has valid grounds for the challenge and follows proper procedures for challenging the document.
 
Standing to Contest a Will
 
A person must have standing in order to contest a will. That means that a person must have a financial interest in the outcome. That financial interest does not have to be money. It can also be personal or real property. People with standing include those who would stand to benefit through the laws of intestacy if there was no will or a named beneficiary in the will. So, a child who is left out of a will would have standing to contest a will as would a friend who is named in the will but has no rights under the laws of intestacy.
 
Reasons to Contest a Will
 
The family member or will beneficiary who wishes to contest the will must do so for a valid reason, such as:
 
  • Mental capacity: the person contesting the will may argue that the person who made the will lacked the mental capacity to understand what he or she was doing when the document was drafted. In other words, the person making the will was not of sound mind. This is a hard argument to make because the requirement of mental capacity is not very difficult to meet.
  • Fraud or Coercion: the person contesting the will may argue that the person who made the will was unduly coerced or pressured into creating the provisions in the will.
  • Execution of the Will: the person contesting the will may argue that the will was not properly executed. For example, it can be argued that the will lacked the requisite number of witnesses and that it was not notarized.
 
If someone wishes to contest the will on those grounds then she will need to follow the proper procedures in probate court.
 
Procedures for Contesting a Will
 
If you have standing and a valid reason to contest a will then you will need to file the appropriate papers with the probate court in the jurisdiction where the will was entered for probate.
 
Different states have different statutes of limitations regarding contesting a will. Often, it is a very short amount of time because there is an interest in settling the estate quickly. The clerk at the probate court will be able to tell you how long you have to file suit. It is important that you file notice that you are contesting the will as soon as possible so that the will can be probated, the property can be distributed and the decedent’s legal matters can be finalized.
 
It is often important to consult with a legal estate planning attorney if you decide to contest the will. The court may decide that the will is valid as written, that the entire will is invalid or that only a portion of the will is invalid. A qualified attorney can help you navigate the probate court system and come to fair resolution.

The information on this page is meant to provide a general overview of the law. The laws in your state and/or city may deviate significantly from those described here. If you have specific questions related to your situation you should speak with a local attorney.

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