Contesting a Will

The narrow legal grounds for setting a will aside - and why "it is not fair" is not one of them.

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What it means

A will contest is a court challenge to the validity of a will, brought by someone with standing - usually a person who would inherit if the will were invalid, such as an heir under the intestacy statute or a beneficiary under an earlier will. Being treated unequally, or left out, is not itself a ground. People are generally free to leave their property as they wish, and the law asks only whether the document was validly made, not whether it was kind or sensible.

The recognized grounds are few. Improper execution: the formalities the state requires were not met. Lack of testamentary capacity: at the moment of signing, the maker did not understand the nature of the act, the general extent of their property, or the people who would naturally be expected to benefit. The test is lower than people assume, and a diagnosis of dementia is evidence rather than an answer, because capacity is assessed at the time of signing. Undue influence: someone in a position of dominance overbore the maker's free will, typically shown circumstantially through a confidential relationship, the influencer's involvement in procuring the will, isolation of the maker, secrecy, and a sudden departure from a long-standing plan. Fraud or forgery, and revocation, complete the list.

Two features shape these cases in practice. Many wills contain a no-contest (in terrorem) clause providing that a beneficiary who challenges forfeits their gift; states differ sharply on enforcement, and a common approach is to enforce it except where the challenge was brought with probable cause - so the clause raises the stakes without making a well-founded claim impossible. And the challenge must be brought within a period fixed by state statute that is typically short, often running from the will's admission to probate or from the notice sent to interested persons: this is the deadline people miss, because it can expire while a family is still grieving and is materially shorter than ordinary civil limitation periods. That period is set by the statute of the state in question and is not stated here.

Even a successful contest may not produce what the challenger wants. Invalidating a will normally revives the previous valid will if one exists, and only if none exists does the estate pass under the intestacy statute - which may leave the challenger no better off. It is also worth separating a contest from the related claims often mistaken for one: a claim that the executor is mishandling the estate, a claim on a lifetime gift or a beneficiary designation obtained by undue influence, or a surviving spouse's statutory elective share, each of which has its own route and does not require the will to be invalid.

Where this comes from

When people hire a lawyer for this

Get advice early, because the filing period is usually short and the evidence that decides these cases degrades quickly. What matters most is contemporaneous: the drafting lawyer's file and notes, medical records from around the signing date, the witnesses to the execution, bank and account records showing lifetime transfers, and the pattern of who had access and who arranged the appointment. Ask whether the real complaint is actually about the will at all - a large lifetime transfer, a changed beneficiary designation, or an executor's conduct after death are separate claims with separate remedies and sometimes better prospects. If there is a no-contest clause, ask specifically how your state treats it and whether the claim has the probable cause that usually preserves the gift. Contests are expensive, are usually funded by the challenger rather than the estate, and are frequently mediated; ask for a realistic assessment of both the merits and the likely cost before filing, and ask what a successful outcome would actually leave you with.

Worried about the cost? A lawyer can be hired for one part of a case only (limited-scope representation), may be paid from what a claim recovers (contingency fee), or may be free through a pro bono program or legal aid; a court can also waive its own filing fees.

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Related terms

Entries on the same subject:

• Executor (Personal Representative)The person a court authorizes to wind up an estate - a job with real duties, real personal exposure, and a right to be paid.
• Intestate SuccessionThe statutory order in which a person's property passes when they die without a valid will - a default set by the state, not by the family.
• ProbateThe court process that settles a deceased person's estate: validating any will, paying debts, and transferring what remains.
• Small Estate AffidavitThe sworn form that lets a family collect a modest estate without opening a probate case at all.
• Spousal Elective ShareThe statutory right of a surviving spouse to claim a portion of the estate regardless of what the will says.

Other entries in the same area of law, each written from the same primary sources.

• Beneficiary Designation (Payable-on-Death)The single line on an account form that overrides the will - and the commonest reason an estate plan does not do what the family expected.
• Elder LawThe practice area that brings together the legal problems of aging: paying for long-term care, Medicaid eligibility, planning for incapacity, guardianship, and protection from abuse and financial exploitation.
• Estate Planning (What an Estate Plan Is Made Of)The set of documents and arrangements that decide who manages your affairs if you cannot, who inherits what, and how, with the least cost, delay and tax.
• Guardianship and ConservatorshipA court transferring legal decision-making for an adult who cannot make decisions themselves - the most restrictive option, and often not the necessary one.
• Last Will and TestamentThe document that says who inherits what - and, just as importantly, the many things it does not control.
• Power of AttorneyA document authorizing someone to act on another person's behalf in financial or legal matters.
• Revocable Living TrustA container you put property into during life so it can pass at death without a court - useful, oversold, and useless if left unfunded.
• Special Needs TrustA trust that holds money for a person with a disability without disqualifying them from SSI and Medicaid, the difference between first-party and third-party trusts, and the ABLE account alternative.
• Successor Trustee DutiesWhat a person named to take over a living trust after the creator dies or becomes incapacitated must do, the duties the law imposes, and when a trustee can be personally liable.

« All glossary terms