Contesting a Will

Estate Law   >   Contesting a Will

Contesting a Will

A Will is a legal document which outlines distribution of an individual’s assets or custody of minor children in the case of death. Under certain conditions, family members may not agree with the decisions outlined in the Will and may choose to challenge or “contest” the Will.

Wills are generally contested on financial grounds by the heirs of the estate. Heirs most frequently argue about how much they are scheduled to inherit or when the proceeds will be distributed. These types of disagreements are often decided through mediation or arbitration in an attempt to avoid a court proceeding.

Lawsuits or a Will contest may be brought to challenge the validity of a deceased individual’s Will, but challenges can only be made by persons of “standing” who were part of the testator’s life or who are entitled to receive part of the deceased estate as a beneficiary of the Will or those who, if but for the existence of the Will, are entitled to inherit from the testator. For example, if the testator had five children and one did not inherit any assets, they may be able to challenge the validity of the Will.

  1. The Will was not signed according to the requirements of state law.
    Under some conditions, the validity of a Will may be challenged if it can be proven that the Last Will & Testament was not signed according to state laws. For example, some states require the Will to be signed by the testator and two witnesses who are present in the same location at the same time. Failing to follow state law may be grounds to challenge the Will.

  2. The Testator  did not have sufficient testamentary capacity to sign the Will.
    If the testator was considered insane, senile, or demented the challenging party may be able to prove that the Will was invalid if they can prove that the testator did not understand the consequences of their actions. Court rulings have varied, but the general assumptions that must be proven are that the testator knew (1) the value of their assets; (2) the natural beneficiaries to inherit their assets; and (3) the legal ramifications of signing the Will. Proving incapacity can be very difficult especially if there is little medical evidence at or near the time of signing to substantiate the claim and provide clear and convincing evidence of incapacitation to the court.

  3. A Will can be overturned if it can be proven that the testator signed the Will under duress or coercion.
    If duress is proven, the court can decide that the Will is invalid because the testator agreed to sign the Will but only because of severe pressure which led them to forfeit their free will. What is duress? It has to be more severe than threats or verbal abuse. State laws vary, but some state courts will consider whether any of the following events occurred: payment for the Will; safekeeping of the Will; isolating the testator from the other family members; recommendation by the beneficiary for an attorney to create the Will; concealing information about what is in the Will prior to its execution; and giving instructions or recommendations (by the beneficiary) to the estate attorney for the creation of the Will.

  4. The Will was procured by fraud. 
    A Will may be declared invalid if it can be proven that the testator was somehow tricked into signing it either through an intentional misrepresentation, concealment of factors, or another person’s misconduct. For example, if the testator was tricked into signing the Will when they thought they were signing anther document.

It is very expensive to contest a Will, and contrary to popular belief, it is not a straight forward process. The good news is that if you decide to contest a Will the process does not necessarily have to be aggressive and confrontational. If you have been unfairly left out of a Will and you believe you have grounds to contest the validity of the Will, talk to a lawyer.

Ask your lawyer how much it will cost to contest a Will, which can vary based on the complexity of the case. Costs will also very from lawyer to lawyer.

What if the court determines the Will is invalid? Under some conditions, the court may distribute the property as defined under state law, as if there never was a Will. At other times, only part of the Will will be considered invalid so only part of the estate will fall into the residuary estate or under intestacy and be distributed according to the intestacy laws where the decedent lived or where they had their real property.

Given the complexities of estate planning laws it is always a good idea to talk to a probate lawyer if you are creating a Will or if you are considering contesting a Will. By getting sound legal advice for creating a Will it is likely that your surviving family members can avoid the costly and time-consuming tasks of challenging the provisions of your Will.

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Jedediah McClure, J.D. is a best-selling and award-winning author, business professor, investor, entrepreneur, and former business executive turned attorney.  He has built multi-million dollar companies in multiple industries, is an accomplished public speaker, and has received wide-spread praise for his ability to educate and inspire others. He has been featured on NBC’s Dateline,  Investigation Discovery, the New York Times, and Bloomberg BusinessWeek.


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