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How To Contest a Will

Fact Checked by Jason Herring & Barry Brooksby
Licensed Agents & Life Insurance Experts.
Insurance and Estates, a strategic life insurance provider composed of life insurance professionals, is committed to integrity in our editorial standards and transparency in how we receive compensation from our insurance partners.
Categories: Estate planning, Wills
will contest

Will contests (legal actions to contest a will) tend to make headlines, particularly in scenarios where a rich widow may have changed her will to give millions to a non-relative caregiver at the end of her life at the expense of her children.  These types of stories often provoke will contests between the new beneficiaries under the most recent will and the old beneficiaries under a previous will.

Contesting a last will and testament is a process that requires proving that the testator, or the person whose will is being challenged, was the victim of undue influence, was not of sound mind at the time the will was executed, or was the victim of fraud. It also requires the person challenging the will to have an interest in the outcome of the will contest.

In general, any attempt to challenge the validity of a will tends to carry a high burden of proof. The law seeks to protect a person’s ability to choose to whom and how his/her estate is distributed as they direct in a duly executed last will and testament or revocable living trust. However, there are cases where the deceased estate holder was clearly manipulated, and these are the cases that give rise to enforceable undue influence claims. I’ll explain that a bit more below.

Do You Have Standing to Challenge the Will?

First, before someone can even begin to challenge a will, that person must have standing. Standing is a legal term meaning the person has something to gain or lose or an interest in the will and its validity.

Someone named in the will as a beneficiary or someone who is not the beneficiary, but who would inherit (or lose) under the will if the will was or is deemed invalid is considered to have standing. That is, someone from off the street cannot challenge the will of a celebrity.

So you see, a music fan would not have no standing to challenge Michael Jackson’s will. Assuming his mother had been the primary beneficiary of an earlier will, but she was cut out of the will that Jackson had when he died, she would have the ability to challenge that will because she no longer is receiving anything under the newest will.

And the same would be true for an ex-wife if, for instance, the couple’s divorce decree required that he give his ex-wife a certain asset upon his death and he changed his will to remove that bequest.

Whereas the random fan would not have standing to challenge the will, Michael Jackson’s mother may have had standing to do so because she was disinherited from a prior will and would be seeking to have that will declared as the rightful, and legally binding, one.

How Long Do I have to Contest a Will?

If you are looking to contest a will, the typical procedure is to object to the will at the initial probate proceeding. Once the court makes a determination that the submitted will is a valid will, generally you still have time to challenge the validity of the will via a will contest.

For example, in California, after the initial probate proceeding where the court determines the will to be a valid will, you typically have 120 days to file a petition in court challenging the probate court’s ruling. Check with your local probate laws for specific timelines on how long you have to contest a will.

The Ground Upon Which to Challenge a Will

There are numerous grounds upon which to challenge a will depending on the particular factual scenario involved.  The most common challenges made to a will are that the testator was not of sound mind, a previous will was changed through fraud, or a will was changed or a will made because he or she was unduly influenced by someone.

Executing a will under undue influence means that the decedent was forced to execute a will under coercion.  Often this occurs where the person who convinces the testator to either change his or her will or a portion of the will is in a position of trust and confidence with the testator and applies pressure to the decedent.

For example, the famous country singer Glen Campbell, who had Alzheimer’s disease, died in August 2017.  A Tennessee judge recently ruled three of his children could contest a 2006 will that disinherited them entirely on the grounds that Campbell was unduly influenced by his widow to sign the will that disinherited the three children but still left portions of his estate to his widow and five other children.

In order to sign a will, a person must be of sound mind.  This means, to execute a will, someone must be aware of what he or she is signing, the property that he or she has and the value of that property, and how he or she is disposing of that property upon his or her death.

Being of sound mind is particularly important when it comes to elderly persons who have either changed a will or execute a will that changes a previous will.

For example, in the case of country singer Glen Campbell, his three disinherited children are also challenging that the singer was of sound mind when he executed the 2006 will disinheriting the three of them completely.

Finally, when challenging a will on the grounds of fraud, the most common scenario is if someone simply impersonates the decedent and forges the decedent’s signature on a will that leaves a substantial bequest to that person.  Challenges based on fraud typically are the least common type of challenges to a will.

Assuming I Have Standing, How Do I Challenge a Will?

The easiest way to challenge a will is simply to file a challenge to a will that is the subject of probate proceedings in the jurisdiction where the will has been submitted to probate, by simply having an attorney file a motion to determine the validity of the will.

If the will you seek to have declared valid is different than the will that was originally submitted to probate, then typically a judge will need to make a determination as to which will is valid and should control.

Given that the testator is deceased, this will boil down to an inquiry into the circumstances surrounding execution of the will to determine whether the testator was of sound mind and free of undue influence when he or she executed the original will that was first submitted to probate.

The Pros and Cons of Challenging a Will: Sometimes a Risky Move but Potential Upside

Challenging a will can be a risky move.  To begin with, most probate court judges will assume that a properly signed and witnessed will is valid, meaning a will contest can be difficult to win from the outset, especially if the will that is being challenged is the first will that was submitted to the court to be probated.

However, on the other hand, if a beneficiary successfully challenges a will then he or she may receive more from the estate than he or she otherwise would under the terms of a will which either disinherits the person completely or in part.  In that case, contesting a will may be worth it if the decedent’s estate is sizeable.

No Contest Clauses

Something that can make a will contest even more difficult to win is a no contest clause.  Many wills may have a no-contest clause in which anyone who challenges the validity of the will automatically loses any bequest he or she may have gotten under the will. However, these are more enforceable in some states than others. For example, in Florida these are not really enforceable in a will and only somewhat in a trust. In California; however, they are much more enforceable and therefore more commonly included in these estate planning documents.

As an example, if your millionaire grandmother left you $1,000 while leaving the rest of her grandchildren $100,000 each, you may wish to challenge that bequest.  However, if your grandmother included a no-contest clause, then by virtue of challenging the $1,000 you received in her will, you are foregoing the $1,000 by challenging the provision of the will.

The “no-contest” means that anyone who contests the will loses whatever he or she is being given under the will.  Although no-contest clauses may seem unduly harsh, they are generally upheld by courts where the will appears to be valid in all other respects.

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