When you contest a will, you challenge the legitimacy of the will in probate court. If a will contest is successful, the court will throw out the invalid will, and the deceased’s property will be distributed either per the terms of an older will or local state probate law. Importantly, you are unlikely to successfully dispute a will simply because you do not like what it says or you disagree with the property distribution. To succeed you are going to need to be able to prove the will is not legally valid. Here’s a quick guide.
Can a will be contested?
Yes, a will can be contested by certain parties under specific circumstances. Some of the most common reasons for contesting a will include:
Legal Requirements Not Followed
For a will to be valid, the testator must follow specific rules and formalities as defined by state probate law. While the specific requirements differ among states, every will must meet the following conditions for the will to be enforceable:
- The testator must be of legal age.
- The testator must intend for the document to function as a will (also known as “testamentary intent”).
- The testator must sign the will.
- At least two witnesses must sign the will (some states require more).
- 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 order for a will to be enforceable, the person making the will (also known as the “testator”) must have what is called “testamentary capacity” at the time it was created. To be considered to have testamentary capacity, the testator must understand three basic ideas:
- That the document they are creating is a will
- The amount of type of property they own
- Who will inherit their property under the will
If the testator did not have the mental capacity to understand these concepts due to Alzheimer’s dementia, a stroke, or another disabling ailment, the will can be contested and thrown out based on the testator’s incapacity.
Undue Influence or Coercion
Another common basis for a will contest is undue influence or coercion. Undue influence means that the testator did not make the will of their own free will and that they were pressured into creating the will or leaving property to someone when they would not have otherwise done so. If the testator changed their will as a result of coercion or force from another person, the will can be contested as invalid.
How to contest a will
To contest a will, an interested party – an heir or beneficiary under a prior will – will need to file a petition in the probate court in the county where the testator lived. The petition must be a formal, written document that outlines the reasons the will is not valid. You will want to retain an experienced probate litigation attorney who is familiar with litigating disputes in the probate court system in that county.
How long do you have to contest a will?
All wills must go through a process called “probate,” which is basically just the process of administering the will through the appropriate county probate court. Once a will has been filed with the probate court, the countdown to the deadline for will contests will begin. In California, you have 120 days to contest the will from the day that probate is opened. However, if you receive notice that someone has filed a petition that claims the testator died without a will, you should file a probate petition with a copy of the will with the probate court as soon as possible and lodge the original with the court.
How much will it cost to contest a will?
The cost of contesting a will varies depending on the particular facts of your case, but most challenges cost thousands of dollars, with minimum attorney fee retainers ranging from $5,000 to $10,000. Successfully contesting a will is challenging, so you’ll want to consult with an experienced probate attorney before taking any action. Whether a contest will be worth the cost depends on a variety of factors, such as the size of the estate, the amount of money you might recover, and the strength of your arguments for the will’s invalidity. A seasoned lawyer can help you evaluate your case and choose the best course of action.
Who can contest a will?
Only people who are considered “interested persons” can contest a will. An interested party is defined by state law, but is generally anyone who has a financial interest in the estate. The California Probate Code § 48 defines an “interested person” as “an heir, devisee, child, spouse, creditor, beneficiary, and any other person having a property right in or claim against a trust estate or the estate of a decedent which may be affected by the proceeding.” Generally, this limits interested parties to heirs-at-law, whether named or unnamed in the will, beneficiaries of previous wills who were excluded from the current will, or others with a financial interest in the estate.
Can a child contest a will if excluded or disinherited?
Yes. If the deceased’s child is excluded from a will or disinherited in it, the child can contest it. These challenges are particularly effective when based on undue influence, fraud or incapacity. A child may also be able to contest a disinheriting will if they can prove that their parent disinherited them based on a mistake of fact, such as an incorrect belief that the child was a drug addict. Children who successfully contest a disinheriting will can often receive substantial inheritances.
Can nieces and nephews contest a will?
Nieces and nephews can contest wills if they are determined to be parties at interest, which means that they have a financial interest in the estate. This would generally occur in situations where a niece or nephew is named a beneficiary of the current will or was named a beneficiary under a previous version of the will but removed from the most recent will.
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About RMO, LLP
RMO LLP serves clients in Los Angeles, Santa Monica, Ventura, Santa Barbara, San Francisco, Orange County, San Diego, Kansas City, Miami, and communities throughout California, Florida, Missouri, and Kansas. Our founder, Scott E. Rahn, has been named “Top 100 – Trust and Estate Litigation” by SuperLawyers, Trusts and Estates Litigator of the Year, and Best Lawyers in America for Litigation – Trusts and Estates. For a free consultation, call (424) 320-9444 or visit: https://rmolawyers.com.