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How to Contest a Will?

Jul 18, 2020

What Happens When You Challenge a Will:

It’s important to understand that a majority of probate cases do not involve will contests or instances where a party attempts to invalidate a will. Generally, if a party wishes to challenge a will, the party contests the will relatively quickly after probate has been filed. The reason a will challenge may occur quickly is to prevent the distribution of any assets.


Reasons That A Court May Invalidate a Will:

Probate filings and will contest are based upon your jurisdiction and state law. Although laws vary state-to-state, there are a few general ways to challenge a will. As outlined in more detail below, probate courts will determine the validity of a will by reviewing all relevant facts. Although any challenger can sue an estate for any reason to invalidate a will, the contester must have a compelling reason. Notably, courts are compelled to honor the decedent’s wishes, and therefore, a contester should provide the court with as much information as possible. Some reasons may include:

The decedent failed to execute his/her will in accordance with his/her state law:

  • Decedent failed to sign his/her will.
  • Decedent failed to meet the witness requirement.
  • Decedent’s witnesses’ signatures did not meet the state requirements.
  • The will needed to be notarized, but decedent failed to properly execute with a notary.
  • The decedent scratched out certain items at signing or added items that were not typed.
  • The will was not type written.
  • The will was determined to be holographic, and the decedent’s state does not recognize holographic wills.


Multiple Wills:

In certain scenarios, a testator may execute one or more wills during their lifetime. Additionally, if the testator executes one or more codicils (explains, modifies, or revokes a portion of a will), the testator’s wishes may be clouded. However, the testator’s state residence will determine whether a previous will was properly revoked.

Some states have requirements that a testator destroy, deface, burn, shred, etc. to properly revoke a will. 

Decedent Was Legally Incompetent or Lacked Capacity:

Often, contester’s use capacity arguments rather loosely, and the contester’s unilateral claims that the “decedent had dementia,” “decedent was losing their memory,” or “decedent developed alzheimers,” may not be enough to persuade a court to invalidate a will. Any contester that claims the decedent lacked testamentary capacity must be proven by the contester, with evidence of a capacity issue, including, medical records, diagnosis, or examples of conduct.

Simply, it’s no surprise that elderly Americans may lose a bit of their memory or suffer from confusion when living in the present world, however, that does not mean that an elderly American lacks capacity. Capacity issues may arise when the testator did not fully comprehend their estate, assets, or beneficiaries to their will. Capacity issues may be manipulated with the assistance of other unlawful acts (ex. duress, undue influence, or fraud) that occur when the testator executed his/her will.

Fraud, Duress, Undue Influence:


Did the decedent know what document he/she was signing? Was the decedent the actual party that signed? When a decedent leaves a will, a number or questions arise. One way for a decedent to potentially safeguard their estate from these questions would be to have their will notarized. Notarization may not be a requirement to create a valid will, however, notarizing a will makes it self-proving. If fraud arises in a probate case (where the will was executed and then notarized), a court may locate the notary and witnesses to confirm the decedent was the signer. 

An example of fraud may include:

  • Decedent believed he/she was singing a document (ex. financial power of attorney, Hippa Authorization, etc.), however, decedent signed a will.

Duress begs the question, did someone actually force the decedent to include or disinherit certain beneficiaries. Duress is much more obvious than undue influence. Duress would be an individual forcing the decedent to execute a will by using the threat of force, violence, constraint, or the threat of bodily harm. As outlined below, undue influence deals with the unlawful influence of a testator, where the testator is unaware or pays little attention to the consequences of what he/she is executing. Duress may seem obvious, whereas undue influence may be difficult to detect because undue influence may be at the hands of a caretaker, child, or friend.

Undue Influence:

When an individual pressures the testator during the estate planning process, undue influence can arise in a number of ways. Some examples may include: 

  • Pressuring the testator to leave some or all assets to particular beneficiaries.
  • Pressuring the testator to disinherit certain beneficiaries.


Will Challenge After Probate:

As discussed above, a contester may want to challenge a will as quickly as possible. Any contest will require the estate to litigate the contest prior to distributing probate assets. It is in the personal representative or executor’s best interest to proceed with caution, some states will hold the personal representative or executor personally liable for improper procedural conduct during probate.

Once a testator dies, the party in possession of the testator’s will must file the will in court. At this time, a contester may file a complaint to challenge the validity of a will. Once assets have been distributed to pay beneficiaries, taxes, and creditors, a contester that successfully challenges a will may have a difficult time collecting if no assets remain. Contesters should also be aware of any applicable statutes of limitation.


Can you challenge a Will after the Estate has been closed?

Once the personal representative or executor notifies the probate court of the estate’s distributions for taxes, creditors, and beneficiaries, the court will close probate. A probate case may be re-opened if a contester or interested party discovers relevant information that may have changed the outcome of probate. 

Additionally, an estate may be re-opened for other reasons. If a beneficiary or creditor was improperly notified or never received notice. A new account is discovered and needs to be distributed. Discovery of an illegitimate child may also be reason to re-open if the testator did not include the child within their will.


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