How to Contest a Will and When You Should

How to Contest a Will and When You Should

Someone you cared about has passed away and on top of the grief, you've either been left out of the will entirely, or not given what you feel ought to be your fair share. This is what you need to know if you're considering contesting a will.

by Brette Sember, J.D.
updated September 22, 2020 · 4 min read

Contesting a will can be challenging, but it can help you rectify mistakes if you've either been left out of the will entirely, or not given what you feel ought to be your fair share.

How to Contest a Will and When You Should

Grief is hard, but it's even harder when you're sure there's a problem with the will. This is what you need to know if you're considering contesting a will.

Who Can Contest a Will?

It's important to be aware that successful will contests "are extremely rare," according to Steven J.J. Weisman, of Margolis & Bloom, LLP and lecturer at Bentley University in Massachusetts.

Before you do anything else about a will you have a problem with, you must determine if you have the legal standing to contest it. Generally, you have the right to contest it if:

  • You were the beneficiary of a prior will
  • You are a beneficiary of the current will
  • You are the beneficiary of a newer will made after the one in question
  • You would be an heir if there were no will and intestacy law applied (this includes spouses, children and possibly parents, sibling and other relatives, depending on the family tree)

When Can You Challenge a Will?

Once you have legal standing to contest the will, you also need a legal reason to challenge it, called the grounds. Just being unhappy with what you have inherited is not a good enough reason.

Matthew Erskine, of Erskine & Erskine in Worcester, Massachusetts, explains, "The biggest misconception is that a promise to leave something to you in their will is enforceable against the estate. So, if Grandma says, 'I will leave this chair to you in my will' and does not, in fact, leave you the chair in her will, you have no grounds to challenge the will unless there is some other evidence that shows that she intended to make the gift but did not due to undue influence or incapacity."

These are the general reasons a will can be challenged:

  • Lack of testamentary capacity: This means the testator (the person who made the will) was not mentally able to make a will (this is sometimes called "being of sound mind"). Generally, a person has to be able to understand what they own, and its value, who their natural heirs are, what they are giving and to whom. If you think the testator didn't understand those three things, then you can challenge the will. Erskine explains, "You need more than just saying that Grandma was incompetent, you need to have actual proof that she was incompetent as far as making a will is concerned."
  • Fraud, undue influence, or forgery: If the testator created the will under duress (was forced to do so), was tricked into signing a will, or their signature was forged, the will can be contested. Erskine says, "Usually, successful will contests are when the deceased makes a sudden and unusual change in their estate plan, and there is evidence of undue influence."
  • Another will: If there is a newer will than the one being probated, that is a reason to contest it. Sometimes there may be confusion as to which will is the most current, and that can also be grounds to contest it.
  • State requirements not met: Each state has its own laws about what a will must contain. If the will does not meet those requirements, it may be invalid. For example, some states do not permit handwritten wills that have no witnesses, while others do. Some states require two witnesses to a will, while others require three. Another wrinkle to this is that the will must meet the requirements of the state where the testator had their residence to be valid. So, if the testator was a resident of Texas, but the will was written in Wisconsin and conformed to Wisconsin law instead of Texas law, it might not be valid.

If you're unsure about whether you have grounds, you should talk to a lawyer. "People may underestimate how difficult it is to challenge a will and that the burden of proof is always on the person challenging the will," points out Weisman.

How Do You Challenge a Will?

Once you've determined that you have standing and grounds to challenge a will, the next step is the legal procedure. First, find out what the statute of limitations is on a will challenge in your state. This is the time period in which you must file legal papers. If the deadline passes and you haven't filed anything, you lose your right to challenge the will. It could be weeks, months, or years from the date of death or filing of the will with the court.

To challenge the will, you need to file a petition in the state probate court where the will is being probated. Each state has its own forms, so you can check with the probate court office or hire an attorney. The petition notifies the court and the estate that you are contesting it. Your case could settle, or it could go to a hearing. The judge will decide if the will is valid.

Patrick Simasko at Simasko Law in Mount Clemens, Missouri, says, "Lawyer fees can range from $250 per hour to $750 per hour depending on the city or state you live in. The fights can also take many years."

A will challenge may be an uphill battle, so it's best to get some solid legal advice about your chances before you do anything.

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Brette Sember, J.D.

About the Author

Brette Sember, J.D.

Brette Sember, J.D. practiced law in New York, including divorce, mediation, family law, adoption, probate and estates, … Read more