Contesting a will: who can do it, how it works

Contesting a will involves formally asking a court to invalidate a person’s will and otherwise distribute the assets of the deceased person. Typically, a will contest involves a family dispute over inheritance.

In general, two types of persons may have standing to challenge a will be:

1. People who are beneficiaries of the person’s current or previous will.

2. People who would have inherited something if the person didn’t have a will (it was “intestate”) and state laws in this scenario would have given them something.

Be sure to consult a qualified legal advisor to understand what the rules are in your jurisdiction.

Various situations can trigger a testamentary contest:

• Disinherit a child or spouse for the benefit of a friend, charity or other relative.

• Don’t leave equal parts of your estate to children.

• Sudden and significant change in your will.

• Putting a lot of conditions on when/how someone can receive their inheritance.

• Behaving in a way that suggests you lacked sufficient mental capacity when you made the will or amended the will.

To contest a will or a modification of a will (called a codicil), the candidate must generally do several things.

• Hire an estate planning lawyer. Contesting a will can be complicated and time-consuming, so get a estate planning lawyer might be a good idea.

• Evaluate the characteristics of the assets in question. If a disputed account is a retirement, pension, insurance policy, or joint account, the deceased may have already designated a beneficiary with the administrator of the account. THE approval process may not influence how these accounts are distributed, so challenging these designations may require filing a lawsuit. Also, trusts generally do not go through the probate process.

• File a petition with the state probate court. It is the formal notice that a person wishes to contest someone’s will. The procedure is sometimes called a caveat. ^[0]

• Appealing the decision of a probate court. If a will goes through the probate process and a person disagrees with how the probate court decides to distribute a deceased’s assets, the person can file an appeal with the court estates.

Be sure to consult a qualified legal advisor to understand what the rules are in your jurisdiction.

Courts generally do not allow people to contest wills simply because they do not like what they received or did not receive from the deceased. They usually require people to argue that the will is invalid for reasons such as:

• The person was not of sound mind when they made the will.

• The will has not been signed or witnessed.

• The person was “in an impaired mental state” and someone influenced them.

• Someone pressured the person to make testamentary provisions against their will.

• Someone lied to the person to influence how they divided their property.

• The person was led to believe that they were signing something else. ^[0]

  New York Bar Legal Referral Service. contest of will. Accessed March 6, 2023.

How to stop someone from contesting a will

Certain things can discourage people from challenging your will. Of course, following these steps does not guarantee that your will will not be challenged, but it could make it much more difficult to pass a challenge.

1. Add a no-contest clause to the will. Also called an “in terrorem” or forfeiture clause, it states that a beneficiary who disputes the will loses all or part of their inheritance. Not all courts recognize these clauses and, where permitted, people can instead ask a court to “interpret” the will to avoid appearing to challenge the will. Be careful though: the non-contestation provision could end up benefiting people who have already influenced the will.

2. Leave a note explaining your reasons. You could write, for example, that you are leaving one of your children a larger share because the child has medical needs, or that you are leaving your money to charity because your heirs are financially stable.

3. Avoid harsh language. Using mean or malicious language in a will could embolden heirs who feel aggrieved. Also, if the will goes through probate, it can become a public document. In this case, the people defamed in the will (this is called testamentary defamation) may be able to sue the estate for defamation, which could mean a payment for them.

4. Have witnesses. A Will Execution Ceremony with witnesses can help show that you were of sound mind when you made the Will and that you did in fact make it.

5. Have a will to save. If someone persuades the court that your will is invalid, the court can request earlier versions of your will. Having an older, already executed will on file may frustrate the candidate. ^[0]

If you’re particularly worried about someone challenging your will, there are some additional steps that can help.

1. Write the will by hand. A handwritten document can show a court that you were competent enough to decide what to write.

2. Do it on video. It can show that you signed the will, that you were of sound mind, that you knew what you were signing, and that you were not under duress. You can also discuss or explain the provisions of the will. You will need to ensure that the video is properly produced, unmodified and identifies everyone present.

3. Get a physical the same day you sign your will. Testimony from a doctor who saw you on the same day can help refute future claims that you were mentally incompetent when you signed the will.

What is the cost of contesting a will?

The cost of contesting a will can run into the thousands of dollars when you consider these expenses:

• The fees of estate planning lawyers, who generally charge by the hour.

• Court fees, which vary by jurisdiction.

• The value of your time to manage the process.

Weigh the costs of contesting a will against the value of what you hope to gain to determine if the effort is worth it financially and emotionally.