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.
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:
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.
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:
It's almost never an issue, but the person who made the will must have been:
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:
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.
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.
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:
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.
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.
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.)
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.
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.
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:
To make your own valid will or simple living trust, you can use Nolo's Quicken WillMaker & Trust.