Challenging a Will

When family members or loved ones pass away, they typically leave behind a will describing exactly how they want to dispose of their personal property and other assets. As long as the will is properly signed and executed according to state law, there’s a good chance a person’s final wishes will be honored.

But in some cases, beneficiaries named in the will grow suspicious of how the deceased’s property will be distributed. If it seems as if the will does not reflect the final wishes of its writer, it’s possible to challenge the document’s validity in court. This legal process is known as challenging a will – or contesting a will.

Legal challenges to a will occur rarely, and for good reason. In addition to sparking a great deal of family turmoil, the process can take years to from start to finish and can end up costing large sums of money. There are only a limited number of valid reasons to justify a will contest, and convincing the court to throw out a will is no easy task.  

Who Can Challenge a Will?

Only someone who stands to lose something of value in the will can challenge the legality of the will and if a court should uphold its terms. A deceased person’s spouse is usually the person who challenges a will, but the challenger can also be a parent, child, relative, beneficiary or creditor.

Some wills contain a section called a no-contest clause that discourages beneficiaries from challenging the will’s validity. These clauses threaten that anyone who challenges the will gets nothing — but this shouldn’t discourage you from filing a valid complaint in probate court. Some states don’t enforce no-contest clauses, and if your challenge is successful the clause will likely be thrown out with the rest of the will.

Valid Reasons to Challenge a Will

In the majority of cases, will disputes are purely emotional and have no legal basis. Family members unhappy with their inheritance often threaten legal action without realizing how difficult it can be to prove that a properly executed will does not reflect the true intentions of the will-maker.

And there are not many valid reasons for someone to contest a will. No matter how strange or unfair the terms of the will may seem, you probably only have a case if you can prove the will was the result of undue influence, fraud or a lack of testamentary capacity. To convince the probate court to void a will, either in whole or in part, the burden of proof lies with the challenger.

Valid reasons for challenging a will are:

If you believe someone had undue influence on the will's author.

If you believe the will was fraudulently prepared, is a forgery or was signed under duress.

If you believe the author was not in control of his or her faculties when the will was prepared.

Undue Influence

One reason a court might rule that a will is invalid is if there is strong evidence of undue influence. Undue influence occurs when someone convinces a will-maker to distribute property for his or her own personal gain, whether it is accomplished by force, persuasion or deception.     

In many cases, the person exerting undue influence is someone the will-maker trusts and depends on for care or guidance. Although undue influence is a difficult accusation to prove, the court is more likely to back the challenge when the will-maker is in a vulnerable state and transfers his or her assets in a suspicious way.    

It’s important to realize, however, that the law grants everyone the freedom to dispose of their personal property however they wish. This is known as freedom of disposition. Just because a person decides to make significant changes to his or her will late in life does not necessarily mean there was any undue influence.

Fraud, Forgery or Duress

You can contest a will if there is any evidence of fraud, forgery or duress. In the case of fraud, a person uses deception to convince the writer of the will to go against his or her personal wishes. This can happen when someone is tricked into signing a will while under the impression it is another document, or when the will-maker is misled about important facts that influence his or her decisions.

A judge can void a will if the court determines the document is a fake or contains a forged signature. The same is true if a judge determines that someone coerced or forced undue influence the writer of a will, it is known as duress.

Lack of Testamentary Capacity

For a person’s will to be valid, he or she must have testamentary capacity. This means that when the will signed, the will-maker was mentally sound. A person is considered to have the mental capacity to write a will as long as he or she:

Understands the purpose of a will
Has a general idea of what property he or she owns
Knows who typically inherits property
Can decide how to reasonably distribute property

In most will challenges related to testamentary capacity, the challenger alleges that the will-maker suffered from insanity, senility, dementia or delusion when the will was signed. Because the probate court generally assumes that a person has testamentary capacity as long as the will is properly signed and witnessed, there must be strong evidence to prove otherwise.

Sufficient evidence for a lack of testamentary capacity might include the will-maker’s medical records or testimony from witnesses to his or her will. If the will-maker was diagnosed with psychosis, Alzheimer’s disease or another form of dementia, or if witnesses to the will’s signing recall irrational behavior, the will may be discarded. But even if a person is not of sound mind before or after execution of the will, the probate court could still rule that the will was signed at a moment of clarity and is therefore valid.

The Process for Challenging a Will

The process for challenging a will is much like that of any other civil case aiming to settle a dispute. The first step of a will challenge is to file a complaint with the probate court. There is usually only a limited amount of time to challenge a will once it is admitted to probate. This window is set by law, so it can vary from state to state.

The complaint over the will is defended by the executor, sometimes called the personal representative, who manages probate of the deceased person’s estate. Next, a court hearing is scheduled. The challenger and the executor can each hire an attorney to help them plead their case.

During the proceedings, the probate judge reviews evidence from both parties, and after considering both arguments, issues a decision. The judge can rule that the will is completely invalid, partially invalid or completely valid.

If the judge decides the will is invalid, in whole or in part, then estate property is distributed according to laws of intestate succession. Part of state legislature, these laws dictate who inherits the property when there is no valid will.  


Get Started →