Probate Information Center

Contesting a Will: Who and How

To raise a challenge in a court of law, the challenger-called the petitioner or plaintiff-must have standing to do so. In the legal field, having standing means that you have a particular interest in a potential legal dispute that gives you the right to be heard in a court of law.

Two types of people usually have standing to contest a will. The first category includes those people who would normally be heirs or beneficiaries of the decedent. Normal beneficiaries of a person can include his or her spouse, children, parents, and other close relatives. The second category includes persons and entities named in the supposed last will and testament of the deceased. The document creates their interest and ability to contest the will.

In perhaps all cases, no other individuals or entities may have standing to contest the will.

On What Grounds?

There are very specific reasons why people contest wills. The reasons included here are not necessarily an exhaustive list. An attorney can help you determine whether or not you have a case for contesting.

Firstly, the author of the will must be deceased. Since a will cannot have any effect until the author has died, no potential heirs or beneficiaries have any legal interest until that time. But assuming the author of the will to be contested has indeed passed away, there are a number of grounds for contesting the will:

lack of testamentary capacity
duress
revocation or supersession of part or all of the will
undue influence
fraud or forgery

Any of these preceding, and many more not listed, can cause the will to be invalidated. A brief discussion of the listed issues follows.

Lack of Testamentary Capacity

Capacity is often thought of in terms of competency. If a person is incompetent at the time of writing or signing a will, then the will may be considered invalid, even if the decedent actually did write or sign the will.

Lack of capacity may manifest in many ways. A person may not have the mental faculty to understand what a will is, or what his or her property consists of, or to whom the property should or will be devised. The threshold for capacity to write or sign a will is usually the lowest of all legal competency tests. In most cases, a person who is competent to make any other legal or common decision is going to be competent when it comes to writing his or her will.

Duress

People are compelled by others to act and to say things against their intentions in many areas of life. Duress can come into play in estate planning and will writing as well. Duress is often seen in the use of threats or force by one person to compel another person to act contrary to the way he or she would normally want or choose to act.

As an example, a grandchild might threaten to run over a grandparent's dog with his or her car unless the grandparent rewrites his or her will to give the grandchild a larger share of the estate. Further, perhaps the grandchild threatens to attack the grandparent if the grandparent tells anyone about the threats. It is certainly reasonable to see that the grandparent might change the will and not say anything out of fear of the grandchild's threats.

Duress invalidates a will because the will must reflect the intent of the author. A will written under duress reflects the intent, at least in part, of the perpetrator and not of the author.

Revocation or Supersession

A will may be contested if it is not the most current iteration of the document. It is possible to write many wills and codicils over a lifetime. A codicil is a document that amends a will without necessarily revoking the will in full.

The will that is produced and filed may be an earlier version of the most current will. The greatest evidence to refute an outdated will is another will, or at least a codicil, that can be shown as having been written later that the filed will. If multiple wills are produced, the will that was written closest to the author's death will be governing.

Undue Influence

Similar to duress, a will written under undue influence reflects, at least in part, the intent of the influencer and not the will of the author. But this is not in the same vein as duress, because the pressure may be obvious dominance or subtle manipulation.

An example of a subtler manipulation might be that a son visits his elderly mother less and less often over time. When she asks him why he doesn't come around much anymore, he responds that if she were to leave him a larger portion of the estate than his siblings, then he would have more incentive to come around. To further complicate matters, the mother is desperately lonely and her other children live in far away places. This son is the only one who comes to see her, and he knows that she will likely give him more if he uses his visits as leverage.

If the mother in the above example changes her will because of her son's pressure, then the other siblings may have a case for contesting the will based on undue influence, which may invalidate the changes and revert validity to the prior iteration.

Fraud and Forgery

Fraud and forgery are not necessarily the same idea, but because of the closeness of the concepts, they can be talked about together in general.

A forged will is a fake will that has not been written by the decedent. It may have been written by an heir or beneficiary, or it may have been written by someone completely unrelated. Presenting a forged will as a true will may be fraudulent.

But other acts might be considered fraudulent. Destroying a current will and knowingly offering an older, revoked will in its place might rise to the levels of fraud. To defraud someone is intentionally to trick or deceive someone. Any action that a court might consider dishonest dealings can be considered fraudulent.

Both forgery and fraud will invalidate a will.

A knowledgeable probate litigation attorney can offer advice on contesting a will.

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

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