Contesting a Will

Contesting a will is very unusual. By one estimate, about 99% of wills sail through probate without a hitch. But if a will doesn't fulfill certain legal requirements, or if the maker of the will was not of age or sound mind, someone who stands to benefit from getting the will thrown out can challenge it in probate court after the will maker's death. Below, learn more about who can challenge a will, and on what grounds.

• Who Can Challenge a Will in Probate Court?
• Grounds for Contesting a Will
  • Age of the Will Maker
  • Mental State of the Will Maker
  • Fraud or Undue Influence
  • Contents of the Will
  • Witnesses and Signature (but Not Notarization)
• The Process for Challenging a Will
  • How Long Do You Have to Contest a Will?
  • Is a Will Worth Contesting?
  • Watch Out for No-Contest Clauses
• How to Avoid a Will Contest

Who Can Challenge a Will in Probate Court?

You can't just go to probate court and challenge any will that comes through its doors. You must have the legal standing to contest the will, which means that you must be an interested party. This usually means at least one of the following:

• if there was no will, you would've been an heir under state laws of intestate succession,
• you were a beneficiary of a previous will (made before the one in question) or a later will (made after the one in question), or
• you are a beneficiary of the current will submitted to probate.

Example: If you inherited $20,000 under an older will, and $5,000 under the current will submitted for probate, you could challenge the current will.

Example: If you are not a beneficiary named in the will, but you are a child of the deceased and would inherit property under the laws of intestate succession (which apply when there's no will), you could also challenge the will.

But simply have the standing to contest the will isn't going to mean much unless you have a basis for the challenge. The following section outlines the most common grounds for contesting a will.

Grounds for Contesting a Will

If you're wondering whether you can contest a will, review the most common reasons for challenging a will below, and consider whether any of these might apply to your situation. The grounds for contesting a will center around:

• whether the will maker was legally able to make a will
• whether the will document conforms to state laws, and
• whether a third party illegally manipulated the will maker.

Age of the Will Maker

It's almost never an issue, but the person who made the will must have been:

• 18 years of age or older, or
• living in one of the few states that permit people younger than 18 to make a will if they're married, in the military, or otherwise considered "emancipated."

Mental State of the Will Maker

The maker of the will must have been of "sound mind" when the will was made. This is not a rigorous requirement. Usually, a court faced with resolving a question of mental capacity requires only that people making a will:

• knew what a will does and that they were making one
• understood what they owned, and
• generally knew who would inherit their property, such as a spouse or children.

In reality, a person must have been pretty far gone before a court will rule a will invalid. Forgetfulness or even the inability to recognize friends doesn't, by itself, establish incapacity. If the will maker understood the above points at the time they were making the will, it will usually be deemed valid.

Fraud or Undue Influence

A will can also be declared invalid if a court determines that it was procured by fraud, forgery, or "undue influence." This usually involves someone who occupies a position of trust—for example, a caregiver or adult child—manipulating a vulnerable person to leave all, or most, of their property to the manipulator.

Learn more about undue influence.

Contents of the Will

What makes a document a valid will? Every state has rules about what a will must, at a minimum, contain. Most states require that the document:

• expressly state that it's the will of the person who wrote it
• include at least one substantive provision, such as a clause leaving some property to someone or appointing a personal guardian for a minor child, and
• appoint an executor (called a "personal representative" in some states)—a person responsible for carrying out the terms of the will when the time comes. Nevertheless, in most states, even if an executor is not named, the court will appoint one and then enforce the will.

Witnesses and Signature (but Not Notarization)

A will must be dated and signed in the presence of at least two adult witnesses. In most states, the witnesses cannot be people who are named to inherit property under the will. (If a witness inherits, this may void the gift to the witness but not the rest of the will.)

An exception to the witness requirement is a holographic will, which valid in about half the states. Holographic wills are valid even without witnesses, but they must be signed and either entirely or partially written in the handwriting of the person making the will. (Some states, but not all, require that they also be dated.) Because there are no witnesses, holographic wills are more easily challenged than standard wills; the probate court must be satisfied that the document is actually in the deceased person's handwriting and was intended to serve as a will.

To the surprise of some, wills don't have to be notarized to be valid. Some wills, however, include a self-proving affidavit (sworn statement by the witnesses) that the witnesses sign in front of a notary public. The extra step of making a self-proving affidavit isn't necessary, but it saves some time later when the will is submitted to the probate court.

The Process for Challenging a Will

You can challenge a will after it is submitted to probate, but there are deadlines, discussed below. So once you receive notice that someone is beginning the probate process, you'll want to act quickly if you decide to contest the will.

How Long Do You Have to Contest a Will?

The exact deadlines for challenging a will vary by the state. Typically, you get a few months to challenge the will. If you don't come forward to challenge the will by the deadline, you're likely out of luck.

By way of example, in California, you may have up to 120 days (or around four months) after the will is admitted to probate. (Cal. Prob. Code § 8270.) In Illinois, you have six months after the will is admitted to probate. (755 ILCS 5/8-1.)

Is a Will Worth Contesting?

It's hard to succeed when you contest a will. And the costs of litigation are always high. Will contests are also associated with high emotional costs, since bitter family disputes are often involved. That said, if you feel you have a strong case and you have a lot to gain, you should certainly explore your options with a probate lawyer.

Watch Out for No-Contest Clauses

One word of caution: In about half of the states, courts will enforce no-contest clauses. Some wills contain a clause that says if you challenge the will, you get nothing. And sometimes these clauses hold up in court. So if the will in question contains a no-contest clause, you should proceed with caution and consult a lawyer.

How to Avoid a Will Contest

If you're making a will and are interested in preventing it from being challenged by disgruntled family members, you can take the following steps. While nothing is iron-clad, these steps can help strengthen your will against challenges:

• Make your will self-proving (with a notarized affidavit)
• Include a no-contest clause, if it's enforceable in your state, or
• Avoid probate altogether by opting for a living trust instead.

To make your own valid will or simple living trust, you can use Nolo's Quicken WillMaker & Trust.