How Does a Will Contest Work

A will contest is a proceeding to have a deceased person's will declared invalid, sometimes in part and sometimes in full. While will contest proceedings are uncommon, they occur often enough that you should consider the possibility of a challenge to your will, and how you might prevent that from occurring.

No matter how much care you take in planning your estate, and no matter how reasonable you believe that your heirs will be upon your passing, there remains a chance that somebody will contest your will. Will contests can also have a long-term, devastating effect on family relationships.

How do will contests occur, who can contest your will, and what can you do to keep a will contest from happening?

Who Can Contest a Will

In order to contest a will, the person who commences contest proceedings must have legal standing, that is, the legal right to challenge the validity of the will in probate proceedings.

The law grants standing to all beneficiaries named in the will, and to all persons who would have inheritance rights if the deceased person had passed away without a will.

Grounds for Contesting a Will

In order to contest a will, the person making the contest must present legal grounds to set aside part or all of the will. Common grounds alleged in will contest proceedings include:

  • Lack of Testamentary Capacity: It may be alleged that the person who created the will (the testator) lacked the mental capacity to enter into a will at the time of its execution.
  • Legal Insufficiency of the Will: It may be alleged that the will is in improper form or was not properly executed or witnessed, such that it does not satisfy the legal requirements to be recognized as a valid will.
  • Fraud: It may be alleged that somebody tricked the testator into executing a will, such as by presenting for signature a document that the testator did not know was a will, or by secretly substituting a different will for the testator's signature. It may also be alleged that the testator was given false information and drafted provisions of the will in reliance upon that false information.
  • Forgery: The will is challenged based on an allegation that the signatures on the will are forged.
  • Undue Influence: It may be alleged that somebody improperly pressured the testator to include provisions in the will that, but for the person's improper influence or threat, the testator would not have included.
  • Presentation of a Subsequent Will: A document may be presented that is alleged to be a more recent will, that revokes or supersedes the prior will submitted to the probate court.
  • Invalid Provisions in the Will: The will may be alleged to contain provisions that are in conflict with the law, such as a gift made in violation of the rule against perpetuities (a law intended to make sure that bequests vest with heirs within a legal time frame), that violate the laws of a state (such as Louisiana's forced heirship laws), or are otherwise invalid.

What Happens in a Will Contest

Will contests occur after a will is submitted to probate. The administrator of the will must provide notice to interested parties, meaning all named beneficiaries and legal heirs of the estate. Interested parties, potentially including people who claim to be heirs but who are not known to the administrator, then have a limited amount of time to object to the will by commencing a will contest.

The person who is challenging the validity of the will must file a complaint with the probate court in which the will is being probated, describing the grounds upon which it is alleged that the will is partially or entirely invalid. The administrator of the estate will normally retain a lawyer on behalf of the estate to answer the complaint and to defend the estate against the contest.

Court Proceedings

After the complaint is filed, the litigation process commences.

  • There is likely to be discovery, the formal exchange of information between the parties,
  • It is likely that depositions will be taken of witnesses who have knowledge or information relevant to the estate and the claims made by the person contesting the will.
  • If the case goes to trial, the person contesting the will must present evidence that the will is not valid, and the estate may present evidence to demonstrate its validity.

In most cases, a will contest will settle before trial.

When deciding the case, the probate judge will determine if the person contesting the will has proved its invalidity by a preponderance of the evidence.

  • If the court finds that the contest is valid, the court may overturn the will in whole or in part.
  • If the court finds that the will contest is not adequately supported by the law, by the facts, or both, the court will uphold the will.

Invalidation of a Will

If a will is invalidated and another will is available for probate, be it a prior valid will or a subsequent will that was proved valid during the will contest proceedings, probate may proceed under the terms of the other, valid will.

If the will is invalidated in part, bequests made under the valid provisions of the will remain in effect.

For invalid provisions, or when a will is invalidated with no other will submitted for probate, the court will normally follow the laws of intestate succession to distribute the estate, laws that define how an estate is distributed to heirs when the decedent has no will.

How to Prevent a Will Contest

Unfortunately, there is no perfect way to prevent a will contest. However, there are measures that you may take that will reduce the chances of a will contest, and which may prevent one from occurring or result in its faster resolution.

Keep your Estate Plan Up-to-Date

Review your estate plan every few years, or after a significant life event such as the sale of your home or your relocating to a new state, to make sure that it still reflects your wishes.

If you no longer possess assets that are described in your will, you experience changes in your family, or you find that your wishes have changed, update your will to reflect your present goals and wishes.

Properly Prepare and Execute Your Will

When creating your will, make sure that the language of your will is clear, and that your heirs will understand your wishes. Make sure that your will is in proper form and that it is legally executed pursuant to the laws of your state.

If you take care to draft a valid will that is properly executed in front of witnesses, perhaps with a self-proving affidavit to help with the submission of the will into probate, you reduce the chance of a challenge to your will based upon a technical error, and significantly reduce the chance that the challenge will succeed.

If an heir may allege that you were not mentally competent at the time you executed your will, you can keep with your will a statement from a qualified medical or mental health professional attesting to your legal capacity. You can also make and preserve a video recording of yourself and your witnesses as you execute the will, in order to further document your physical and mental health.

Anticipate Objections and Document Your Wishes

If you consider possible objections to your will, it is possible to preempt objections within the will, in associated documentation, or by taking special care during the drafting and execution of your will. For example:

  • Undue Influence: If an heir may allege that you were unduly influenced by another beneficiary of your will, you can make sure that the beneficiary plays no role in the preparation or execution of your will, and is never present during your meetings with the lawyer who drafts your estate plan. As a general rule, you should not include your heirs in the estate planning process.
  • Omitted Heirs: If you give gifts to your children, you can consider making a class gift that includes all children born or adopted during your lifetime, so as to include any children you have after you execute your will. If you are concerned that an illegitimate child may make a claim to your estate, you can expressly note that you have considered the possibility that you have unknown children and describe your wishes, whether that they be treated like your other children, receive a smaller gift, or receive nothing.
  • Plan in Advance: Draft your will when you are healthy, so that it becomes much more difficult for your heirs to allege that you were in a state of declining physical or mental health at the time of its execution, or that you fell under the undue influence of a caregiver.

While your anticipation of possible problems won't necessarily prevent a will contest, the more thought you give to these issues and the more care you take in preparing your will, the less likely it becomes that a will contest will occur.

Discuss Your Will With Your Heirs

You can inform your heirs of your plans for your estate during your lifetime, so that they are not surprised by your estate plan after your passing. The discussion may also bring to your attention problems or objections that you did not anticipate, so that you can amend your estate plan or better document your intentions during your lifetime.

You can draft a letter to your heirs that you provide to them at the time of your discussion, explaining your wishes and the gifts that you have made in your will, and keep a copy of the letter with your will.

Make Gifts Outside of Probate

You can use estate planning tools such as a revocable living trust, and beneficiary designations on financial accounts, annuities and insurance policies, to make gifts to your heirs that are received outside of the probate process. You may also use other forms of trust to make gifts to beneficiaries who may have difficulty managing assets, whether due to poor judgment or incapacity.

While the use of a trust or beneficiary designation does not prevent the challenge of the trust or gift, it is generally much more difficult to contest gifts made through trusts or otherwise outside of probate, as compared to contesting a will.

You may also make gifts during your lifetime. If you fully complete a gift while you are alive and in good health, it is unlikely that a probate court will later be convinced by the argument that the gift was not valid and that it should be restored to the estate.

File Your Will With the Probate Court

In many jurisdictions you may file your will with the probate court, or another government office, which will keep your original will in a fireproof safe.

While the will may later be challenged, and if you take this step you should take care to also register any later will that you execute so that your most recent will is always on file, it is generally difficult to contest the validity of a will when it is on file with the court.

No Contest Clauses

A common approach to preventing will contests is to include a "no contest" clause within the will itself, pursuant to which any person who contests the will is partially or fully disinherited. This type of clause is also called an in terrorem clause, a term that refers to a legal threat that is intended to compel or deter action without the need for litigation.

Unfortunately, no contest clauses are not very effective at preventing will contests.

  • If the person bringing the contest is not named as a beneficiary in the will, that person has nothing to lose.
  • If a person has a legally valid reason to contest a will, a court will not ordinarily enforce a clause punishing that person for bringing the contest.
  • Courts may deem a no contest clause to be excessively punitive, and decline to enforce it.

Also, as probate litigation can be very expensive, will contests tend to settle, and settlement prevents a no contest clause from coming into effect. Thus, while there is no harm in including a no contest clause within your will, it will not do much to prevent a will contest.

Ante-Mortem Probate Proceedings

Although not generally available, some states (such as Ohio) permit you to submit your will to probate during your lifetime, and have the will declared valid by a court.

If your will is validated in that manner it becomes effectively impossible for somebody to contest your will after your passing. However, this approach makes a public record of your estate plan during your lifetime, and may at times create family conflict.

Copyright © 2017 Aaron Larson, All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you use a quotation, excerpt or paraphrase of this article, except as otherwise authorized in writing by the author of the article you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.

This article was last reviewed or amended on May 7, 2018.