How Wills Are Challenged
A Will must be specific––ambiguity creates space for challenges. Likewise, a Will must be executed properly, or else it again creates a situation where it can be challenged in probate court. Further, if there is more than one Will because prior Wills were not properly revoked, there again is a situation where a Will can be challenged after the death of the testator.
Challenges to a Will take up a lot of resources, particularly time and money. Sometimes a challenge is not genuine while other times, the challenge to a Will's validity, meaning, or purpose, is viable and worthy.
What is a Will Contest?
When a person dies, their Will is offered for probate. The Will proponent––the person asserting the Will's validity––has the burden to prove the Will was duly executed. When a person challenges the validity of the Will, the burden shifts to the person challenging it, who is known as the contestant or caveator. The remedy for the challenge is what's known as a Will contest.
Who Can Challenge a Will?
Not everyone can challenge a Will, and the precise groups of people who can depends on the state. However, most states recognize the following “interested parties” as people who can challenge a Will in probate court because, given the circumstances, they have legal standing to contest the Will.
Interested parties include:
- Beneficiaries of the will, or people who actually received property in it
- Beneficiaries of a prior will, but who have received nothing in the current one
- Anyone who would have inherited through intestacy law, but who received nothing in the will
- Creditors with a claim against the estate
To note, beneficiaries do not have to be family members but could be friends or organizations.
Grounds for Contesting a Will
An interested party who wants to challenge a Will must have a valid legal reason to do so. The grounds for challenging a Will can include:
- The Will does not comply with the state's legal requirements by, for example, not having enough witnesses or having a witness that was also a beneficiary
- Ambiguous provisions exist
- The Will was revoked
- A new Will exists
- Undue influence, fraud, or duress altered the testator's decisions in the Will
- The testator lacked the necessary mental capacity to write a will
- Claims the testator suffered from insane delusion, which occurs when the testator believes something that does not exist except in the testator's mind, and the delusion affected the testator's disposition of property
When an interested party contests a Will, that party has the burden to prove the allegations.
How to Challenge a Will
An attorney can help you challenge a will by filing a lawsuit in the probate court that has jurisdiction in the place where the testator died. These challenges have to be made quickly: The state's statute of limitations usually begins to run when the testator dies, and once it expires the will cannot be challenged.
However, many wills are written with no-contest clauses, also known as no-contest “in terrorem”. While these do not completely prevent challenges from being made, they do strip a beneficiary of what they received in the will if they mount a challenge and then lose their claim in court. Testators make frequent use of these clauses when they want to deter challenges.