Challenging or contesting a will is a formal objection as to the validity of a will. A will is often challenged when an interested party believes that the will is invalid in some way. Challenging a will is not an easy task, but it can be done.
To challenge a will, you need two things: Standing and Grounds.
Only someone with “standing”, also known as an “interested person” can challenge a will. An interested person who is someone who:
- Is named on the face of the will (a beneficiary)
- Would benefit if the will was found invalid
Interested persons may include spouses, children, heirs, devisees, or anyone who may have a claim against the estate.
There must be “grounds” to challenge a will, which means that there must be a rational motive or basis for the legal action taken. Common grounds to challenge a will include:
è Lack of Capacity
The person creating a will must have “testamentary capacity”. This means that the person who signed the will was an adult and had “the capacity in executing a will to understand the nature and extent of one’s property and how one is disposing of it and to recognize the natural objects of one’s bounty”.
An adult may have a lack of capacity due to dementia, insanity, or being under the influence of a substance. A will can be challenged on the grounds of lack of capacity if an interested person can show that the adult did not understand the consequences of making the will at the time the will was created.
è Fraud/Forgery/Improper Influence
An interested person can challenge a will that they believe was created fraudulently, by means of forgery, or through manipulation.
è Lack of Execution
Each state has their own laws, but generally a will must meet the following elements to be considered valid:
- The will is in writing (not verbal)
- The will is singed by the testator (the person who created the will)
- The testator’s signature is witnessed and attested by two non-interested persons
- The will is signed and stamped by a notary
If a will lacks any of the above elements, it becomes susceptible to challenge.
In most states, you challenge a will by filing a petition with the probate court that has jurisdiction of the deceased’s estate. This filing can involve specific deadlines and rules for the challenger.
More and more wills are including “no-contest clauses”. While there are some exceptions, a no-contest clause can automatically disinherit any person who challenges the validity of the will. Challenging a will just because you think your inheritance should be higher could potentially cost you all of your inheritance per the no-contest clause.