Contesting a will can be hard on all parties involved in the legal battle, but there are cases where it is worth it. However, because it can take months to go through the court processes necessary to successfully challenge a will, there are situations where contesting a will would not be in anyone’s best interest.
Because each will contest is different, the costs of challenging a will vary depending on the specific circumstances of your case. However, most contests will cost thousands of dollars in legal fees, with attorney retainers generally ranging from $5,000 to $10,000. It is challenging to successfully contesting a will, so it is highly advisable to discuss your case with a reputable will contest lawyer before taking any action.
Whether it will be worth it to contest a will depends on factors such as how large the disputed estate is, the value of the assets you stand to recover, and how sound your arguments against the will’s validity are. An experienced estate litigation attorney can assess the strength of your case and help you decide if the potential benefits of contesting the will are worth the emotional and financial costs.
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What are reasons to contest a will?
You cannot contest a will simply because you don’t like what it says. Instead, to dispute a will, you must have legal grounds to challenge the will’s validity. The most common reasons to contest a will are:
- Legal Formalities Were Not Followed When Creating the Will
- Lack of Testamentary Capacity
- Undue Influence
- Fraud
Legal Formalities Were Not Followed When Creating the Will
For a will to be legally enforceable, the person making it must follow specific legal formalities required under state law. The particular specifications vary from state to state, but everyone who creates a will usually must adhere to all of the following requirements for the will to be valid:
- The person making the will must be of legal age.
- The person making the will must have testamentary intent, which means they must want the document to serve as their will.
Additionally, in order to verify the document’s validity, the person making the will usually must sign it in front of at least two witnesses (some states require more), and the witnesses must sign the will as well. However, there is an exception to the witness and signature requirements for hand-written (“holographic”) wills.
Lack of Testamentary Capacity
For a will to be valid, the person creating it must have “testamentary capacity.” This means that they must have sufficient mental awareness to comprehend three fundamental concepts:
- The extent of their estate
- That they are creating is a will
- Who will inherit their assets
Undue Influence
Another common reason to contest a will contest is undue influence or fraud. In cases of undue influence, the person executing the will did not create it of their own free will. Rather, they were compelled to make the will or name someone as a beneficiary when they would not have otherwise done so.
Fraud
Fraudulent wills may also be contested. This includes forged and otherwise fraudulent will documents, as well as wills that were executed through fraud. For example, if a fraudster tricked someone into signing a will by telling them it was a different document, the will could be challenged as a fraudulently-induced legal document.
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The Process to Contest a Will
If you believe you have legal grounds to contest a will, the process involves several steps, each requiring a legal strategy and supporting evidence. While every case is unique, here is an overview of the general process involved in challenging a will:
- Determine Legal Standing
To contest a will, you must have legal standing. This means you must be directly affected by the will’s terms—such as a beneficiary who was disinherited or an heir who would have received a share of the estate under intestacy laws if the will were invalidated. - Identify Legal Grounds for the Contest
You must have a valid legal reason to challenge the will. Common grounds include lack of testamentary capacity, undue influence, fraud, or failure to meet legal formalities. Consulting with an estate litigation attorney can help determine if your case meets these requirements. - File a Petition with the Probate Court
If you have standing and legal grounds, the next step is to file a petition with the probate court in the county where the will is being administered. This petition formally contests the will and initiates the legal proceedings. - Gather Evidence and Build Your Case
Successfully contesting a will requires substantial evidence. This may include medical records, witness testimony, expert opinions, or financial documents proving undue influence, fraud, or incapacity. Your attorney will work to compile the necessary documentation and testimony. - Attend Mediation or Settlement Discussions
In many cases, probate courts encourage mediation before proceeding to trial. Mediation provides an opportunity for all parties to negotiate a resolution without the time and expense of litigation. If an agreement is reached, it can prevent further court proceedings. - Go to Trial (If Necessary)
If mediation is unsuccessful, the case will proceed to trial. Both sides will present arguments, and the court will determine the validity of the contested will. The judge’s decision will determine whether the will is upheld, modified, or invalidated. - Appeal (If Applicable)
If you disagree with the court’s ruling, you may have the option to appeal the decision. An appellate court will review the case to determine if any legal errors occurred that could change the outcome.
Challenging a will is a complex legal process that requires strong legal representation. If you are considering contesting a will, consulting with an experienced probate litigation attorney can help you understand your options and navigate the process effectively.
Who pays legal costs when contesting a will?
Usually, the person contesting a will is responsible for paying the legal costs. However, a successful challenger may be able to be reimbursed for litigation costs from the estate’s assets in some circumstances.
In probate litigation, each side of a dispute is responsible for its own attorney fees. The person who initiates a will contest will also have to cover any court filing fees and other expenses. However, depending on the law in your state, you may be able to request to be reimbursed for your expenses from the estate’s funds if you can prove that your actions benefitted the estate. An experienced probate litigation attorney can help you navigate the will contest process and explain your potential options for recovering your legal costs.