Glossary
Beneficiary – An individual or entity identified in a will as being entitled to receive benefits from the estate.
Heir – An individual who is entitled to receive a share of assets in the event of the testator’s death based on state laws.
Intestate succession – The legal process for guiding the distribution of assets based on state law when someone passes away without leaving a will or when a will is determined by the court to be invalid.
Probate – The process in which an executor (if there is a will) or an administrator (if there is no will) is appointed by the court to distribute the decedent’s estate’s assets to the appropriate beneficiaries identified in the will or following local intestate succession laws if there is no will.
Testator – An individual who creates a will to be followed upon their death, explaining their wishes for the distribution of their assets to identified beneficiaries.
Testamentary intent – A demonstration of a testator’s intentions to designate a specific document as their last will and testament for the sake of guiding decisions after their death.
Testamentary capacity – A testator’s ability to make sound financial and legal decisions at the time of the creation of their will. Without testamentary capacity, a probate court will not validate a will.
Undue influence – A case where a bad actor exerts influence over a vulnerable creator of a will, causing them to change the will in a manner that contradicts their own interests, typically for the influencer’s personal gain, which can invalidate either a portion of or an entire will.
Will contest – A petition filed with the court to question the validity of a deceased individual’s will.
Introduction
Contesting a will is more common than heirs, beneficiaries, and executors may think. We tell our clients every day — disputing a loved one’s will or trust does not make you a bad person. In fact, will contests often result from interference from a loved one or an interloper that damages the interests of the testator or discredits the testator’s true intentions. We work with heirs, beneficiaries, administrators, executors, and personal representatives on well-founded will disputes to ensure the document reflects the testator’s wishes for the administration of their estate.
All too often, a loved one is taken advantage of or, increasingly, is left managing their affairs long after they should have gotten help—this can result in the will or a portion of it no longer aligning with the creator’s intent. Cases can arise where a new spouse encourages their partner to change their will for their personal gain when the individual is not of sound mind, or a caregiver manipulates their father to leave them a greater share of the estate when he was in a vulnerable state.
In these situations, a will contest is not only a smart thing to do, but it protects what your loved one intended, as a successful will contest can invalidate or revoke any disputed parts of the document that contradict the creator’s interests.
If you will be going through the probate process or you have any concerns surrounding the terms laid out in a will, it’s important that you understand the process for contesting a will. Understanding the process and contacting a skilled probate litigation attorney can help you secure your rightful inheritance and protect the interests of your deceased loved one.
What Is Contesting a Will?
Contesting a will is the process of raising a dispute or concern with the validity of either specific terms outlined in a will or the entire document. Filing a will contest can bring more clarity to the estate administration process by clarifying unclear or ambiguous parts of the will or invalidating them entirely, providing a better path forward for the process.
The following parties can contest a will:
- Beneficiaries or heirs
- Creditors with valid claims to debts
- Other interested parties in the will
These parties will likely bring a will contest if they find that the will contains unclear language about how to distribute the testator’s assets or does not appear to reflect the interests or intentions of the testator.
The following hypothetical scenario may help illustrate how the will contest process might look in a real-world case and highlight the complexities that could arise. This example may highlight potential challenges as well as possible legal mechanisms and outcomes:
Aaron Daniels was a father of three who passed away after battling a several months-long illness that left him incapacitated for the later part of his life. Well before his death, he created a will, distributing his assets of the family home and the remaining assets of his bank account. In the will, he identified his three children Justin, Elizabeth, and Trevor as the primary beneficiaries.
In the months before his passing, Aaron’s illness made it difficult for him to manage his daily activities and make financial and legal decisions independently. During this time, Justin acted as his father Aaron’s primary caregiver, as the other two children, Elizabeth and Trevor, lived out of state and were unable to provide the same level of support.
When the will was initially drafted, Aaron designated that the family home should be sold, with the assets to be distributed equally among the three children. However, shortly before his death, Aaron made an alteration to the will, unbeknownst to Elizabeth and Trevor, which raised suspicion between the two siblings once they discovered the changes.
Understanding the Grounds for Contesting a Will
Not just anyone can decide to contest a will because they are unhappy with the terms—you must have valid standing to do so. Do you have the right to contest or dispute a will? If you’re an heir or beneficiary (person named in the will), you likely have standing.
Here’s a list of common disputes that serve as valid grounds for contesting a will:
- A lack of testamentary capacity
- Claims of undue influence
- Suspected fraud and forgery
- A will is drafted incorrectly
- A will is executed incorrectly
- Disinherited heir/disinherited beneficiary
- Unnatural disposition of estate; not making reasonable financial provisions
- A will is created, amended or revoked by an infirm loved one
If you think that any of these circumstances apply to a will in your family’s situation, you should consult a probate litigation attorney to verify whether you have grounds for a will contest and help you gather evidence to support it.
In our case scenario, when Elizabeth and Trevor received a copy of their father’s will for validation to begin the probate process after his passing, they noticed that they were no longer included as beneficiaries for the family home. Instead, the new will provided for the entirety of the home to be left to Justin.
This came as a surprise to both children, as their father never communicated this change of heart to them or expressed a desire to remove them from his will. With the shock of discovering that the new will had excluded them from their inheritance, they began to research whether they had the right to contest the validity of the will by consulting a probate litigation attorney.
What Makes a Will Valid?
For a will to be valid, the testator must follow specific rules and formalities as defined by state probate law. While the requirements differ among states, every will must meet the following conditions to be enforceable:
- The testator must be of legal age and sound mind.
- The testator must intend for the document to function as a will (also known as “testamentary intent”).
- The testator must sign the will.
AND
- At least two witnesses must sign the will (some states require more).
OR
- The testator must have written the material terms of the will in his/her own hand.
If the will does not satisfy any of these requirements, its validity can be successfully challenged in a probate court upon presenting evidence of the will failing to do so.
In our case scenario, Elizabeth and Trevor raised concerns about the portion of the will that now excluded them from an entitlement to a share of the family home, expressing that they felt their father was not of sound mind when the alteration was made and fearing that their father was unduly influenced by Justin.
They consulted a probate litigation attorney about their situation and decided together that the best way to preserve their father’s wishes and secure their rightful access to their inheritance was to contest the will. Because they were beneficiaries of the initially executed will, Elizabeth and Trevor had grounds to contest the validity of the new will with the suspicious changes.
How Do I Contest a Will? Steps and Procedures
If you plan on contesting a will, it’s important to understand the necessary processes and legal procedures for doing so. Contesting a will involves the following steps.
Initial Assessment and Gathering Evidence
To contest a will, you must ensure you have standing under the law. An initial assessment of your situation will allow you to consider whether you have a valid concern surrounding the will and compile any evidence that supports your claim. A probate and estate administration attorney can offer guidance in this initial assessment to help you determine whether you have standing and discuss whether you have enough evidence to justify a petition for a will contest.
In our case scenario, Elizabeth and Trevor discussed their situation with a will contest attorney and determined that they had standing to contest the will as beneficiaries identified in the previous version of the will. Before filing a petition with the court, they began gathering evidence to highlight that the new version of the will should be considered invalid.
These pieces of evidence included a stark difference in Aaron’s signature between the first and second version of the will, previous email communications that expressed his intent to leave all three children a share of the family home, and testimony from other family members about Justin’s unseemly actions and likely influence on their father while acting as his caregiver.
Notifying Executors and Beneficiaries
After you determine that you have a valid claim, you must begin the process of notifying executors and beneficiaries of the will contest. This process ensures full transparency between all parties and offers them a chance to dispute the contest. These notifications should include a copy of the contested will and the dispute that the beneficiary or beneficiaries are raising against the document.
Filing a Claim with the Probate Court
All wills must go through a process called “probate,” the process of validating the will through the probate court in the appropriate county, administering the estate, and distributing the assets to any creditors and beneficiaries identified in the will.
The next step in conducting a will contest is filing the formal petition with the probate court. It’s important that the person raising the contest files the appropriate documentation to ensure that the claim is valid and will be considered by the court.
In California, a party has 120 days from the date that a will is admitted to probate to file a will contest. After this deadline, the court may not consider the contest, although there can be the occasional exception.
To ensure that you file your claim properly, it’s valuable to consult a will contest lawyer for help with filing the appropriate documentation. While a lawyer is not required to initiate a dispute, it is a good idea. If you don’t file your claim correctly, it could be dismissed, and your claim could be barred forever.
Since Elizabeth and Trevor received a copy of the will at the beginning of the probate process and immediately identified their concerns, they were able to begin contesting the will right away, within the 120-day window that beneficiaries have to initiate a will contest in California.
The siblings filed a petition with the probate court to contest the will’s validity, citing that the new will was submitted when their father was not of sound mind and likely as the result of undue influence from their brother Justin.
Mediation and Settlement Negotiations
After filing the claim, the contest may proceed through a mediation or settlement negotiation. In this process, a third party who is often an experienced attorney or retired judge, known as a mediator, will facilitate communication between the beneficiaries or other parties involved in the dispute, help to clarify issues with the will, and seek a settlement that all sides can agree upon.
During this process, interested parties in the estate will discuss potential resolutions and outline their interests to bridge the gap between them and reach an agreement around invalidating or upholding disputed parts of the will.
Mediation and settlement negotiations are most common in situations where the terms of a will are unclear or when it’s possible to negotiate favorable terms that all sides can be satisfied with. In cases of undue influence where one party is trying to gain as much as possible at the expense of the other beneficiaries and is unlikely to budge in their position, mediation is less likely to be successful.
Court Proceedings and Trial
If alternative dispute options do not work for reaching an agreement, and there are still significant disagreements between multiple sides, the will contest will likely need to go to court to reach a resolution. During court proceedings, interested parties will present their case for the will contest and any evidence to support their claim that the will may not be valid.
Evidence for a will contest may include fraudulent signatures, documents that show the will contradicts the testator’s intent, or a previously signed will that demonstrates a different intent. This process may also include hearing from witnesses who may have valuable input regarding the intentions or mental capacity of the testator at the time they created the will.
Before the court, with the support of their attorney, Elizabeth and Trevor argued that their father Aaron was not of sound mind when he made the most recent alteration to the will. They presented evidence of his medical condition that affected his capacity to make legal decisions, as well as a difference in signatures between the first and second copies of the will, indicating a sign of undue influence.
They also cited that their brother Justin was the primary caregiver and in a position to influence their father to make this change against his interests, with testimony from other family members to support this claim.
Potential Outcomes of Contesting a Will
Because contesting a will is not a perfectly straightforward process, you may experience different outcomes depending on the nature of your contest and the goal you are trying to achieve.
Families and intentions change and grow over time, but one way the courts determine your loved one’s intent is to map their stated intentions over time by examining their historical estate planning documents, including their old wills and trusts, for patterns and inconsistencies.
In some cases, the court may find that the will contest is invalid and uphold the contested document without any changes. In other cases, the contest will be successful and require changes to the will.
A successful will contest can lead to all the following outcomes:
- Successful alteration or revision of the will – A will contest can lead to a direct change or revision in the contested or unclear portion of the will.
- Partial invalidation of the will – If a portion of the will is ambiguous, unclear, or unduly influenced, a contest can invalidate this part of it while upholding the other parts.
- Full invalidation and returning to an older version of the estate plan– If the creation of the will is considered to have been invalid or done without sound mind, and there is a previous version of the will, then the terms of the older will will be followed and the distribution of assets will occur in accordance with the terms of the older will.
- Full invalidation and intestate succession – If the creation of the will is considered to have been invalid or done without sound mind, and there is no previous will to express the testator’s intent, then the terms will be disregarded and the distribution of assets will then be decided according to state law in the intestate succession process.
- Settlement and agreements outside of court – In cases where there is a dispute surrounding the terms of a will, it’s possible for beneficiaries to come to an agreement that satisfies all parties without having to follow through with a contest in court.
In many cases, if a version of a will is found to be invalid, but there is a previous, valid version, the court will reinstate that document to prioritize following the initial intent of the testator. Once the contest is complete, and a valid will is reinstated, the probate process can proceed as normal.
In our hypothetical case, the court found that Aaron was in fact not of sound mind and lacked the mental capacity to make a valid will alteration based on the evidence presented, which is crucial as mental capacity is one of the key requirements for ensuring a will is valid. The judge ruled in favor of Elizabeth and Trevor, and finding that the will was invalid, the court decided to revoke the new will and the letters testamentary, ceasing the probate process.
The court then reinstated the earlier version of the will, allowing the estate personal representative to submit it and begin the probate process. In doing so, they were able to follow the appropriate document that aligned with Aaron’s true intent. The probate process then continued, allowing all parties to receive their share of the estate as initially outlined in the first version of his will.
Keep in mind that every case is unique, and it is important to consult with an experienced probate litigation attorney to determine the best course of action for your situation.
Costs Involved in Contesting a Will
Before contesting a will, it’s important to think about the costs you may incur in the process. You should weigh these costs against your odds of a successful contest to assess your potential risk of losses. In cases where the costs of contesting a will are higher than the inheritance amount at stake, a challenge may not be worth it.
The cost of contesting a will varies depending on the length of the contest, the complexity of the assets, and the complexity of the issues involved. If you plan on contesting a will, you should consider the following costs:
- Legal fees – If you seek legal representation or guidance to support you in a will contest, you will have to pay attorney fees for the professional’s time.
- Court fees and expenses – Court fees involved in a will contest can include filing fees and other court expenses, like reporter fees, which will vary depending on your jurisdiction.
- Potential costs of losing the case – If you lose your challenge, you may have to pay damages or restitution to the opposing party to compensate them for lost time. If there is a “no contest clause” included in the will, you may consider the impact of this provision should you lose the claim.
- Financing options and legal aid – Legal fees can add up quickly, but you may be able to seek financing options and legal aid.
Altogether a will contest can cost tens of thousands of dollars or more. In cases of complex wills or difficult contests that require lengthy litigation, the costs can rise to hundreds of thousands of dollars.
In probate litigation, each party in a dispute is typically accountable for their own attorney fees. The individual initiating a will contest is also responsible for covering court filing fees and related expenses. However, depending on state law, you may have the option to seek reimbursement for your costs from the estate’s funds if you can demonstrate that your decision to contest the will ultimately benefited the estate.
Important Considerations Before Contesting a Will
Contesting a will is a complex, nuanced, and costly process, so it’s important to be prepared and understand what to expect before committing. Deciding to contest a will without a valid dispute or the proper grounds for doing so can be costly, time-consuming and disruptive to the probate process.
Before contesting a will, you should consider the following:
- Time constraints and legal deadlines – It’s essential to consider legal deadlines before initiating a will contest. A will contest must be filed within 120 days of the point where the will is admitted by the court to begin the probate process.
- Likelihood of success and realistic expectations – A will contest is not guaranteed to succeed, and a failed contest can even have potential consequences like losing access to your inheritance or exorbitant spending on legal fees, so it’s important that you consult an attorney about your chances of success before beginning a potentially lengthy and expensive process.
- Alternative dispute resolution methods – Will contests do not have to go all the way to court. Before initiating legal proceedings, consider other resolution methods like mediation or negotiations to promote an amicable agreement for a distribution of assets that satisfies all sides.
If you have any questions about whether you should consider contesting a will, you should schedule a consultation with an experienced attorney for more guidance. An attorney will help you understand your options, gather evidence to support your claim and determine if a will contest is a good idea for your situation.
Navigate the Complex World of Will Contests with the Right Support
Contesting a will is a good option in cases of ambiguity or uncertainty surrounding a will and, depending on your case, can bring favorable results, like increasing entitlements to an inheritance, clarifying terms in the document, or preserving the wishes of the will’s creator. Still, it’s important to understand the processes, procedures, and potential risks involved before carrying out a will contest.
At RMO, our will contest attorneys represent clients in will contests and help guide them throughout each step of the process to help them secure the best possible outcome. With decades of experience in probate and estate administration, we’ll support our clients in initiating contests before the court, following the appropriate legal procedures, and resolving disputes between interested parties.
Schedule a free consultation with our team at RMO to learn more about your options and how to navigate the legal processes behind raising a will contest.
