Contesting a Will (also known as a Will Contest) occurs when a person challenges a Last Will and Testament left behind by their relative. The most common situations occur when a spouse or parent has disinherited a family member or left them with only a nominal share.
To properly contest a Will, the person in objection must issue court proceedings. Each state has its own formalities and procedures which need to be complied with. Strict time limits apply. The laws also vary as to who is entitled to start such an action and on what grounds.
Should I contest a Will?
First and foremost, you need to consider is whether the action is worthwhile. What will happen if you are successful? Will you receive a larger share, or even any share? If you successfully challenge a Will, the outcome is usually that the Will (or part of it) is held invalid. If a Will is invalid, it’s as though it never existed. This means the estate will end up being distributed in accordance with a prior Will (if one exists and has not been revoked). If there is no other Will in existence, then the assets pass according to the state laws of intestacy (as though the decedent died without making a Will). You need to look at what your rights would be (what portion you would receive) if you end up winning and the Will is found to be invalid.
Why contest a Will
The obvious reason for contesting a Will is to claim a larger portion of the estate. However, you can’t just object simply on the basis that the Will is unfair. A person who makes a Will may dispose of their property in any manner they like. They are under no obligation to provide for a wife or a child in their Will. If your parent died leaving you with a smaller portion than your siblings; alone that is not a sufficient reason to contest. Even if you are a spouse and receive nothing or a nominal share, this alone does not give you a basis for challenging the Will. If the Will is valid, then your only recourse is to take the statutory minimum entitlements under the state legislation. Most states provide the spouse with a statutory elective share of about 1/3 of the estate. Children have much lesser rights. You can only successfully contest a Will by showing that the Will or a part of it is not legal.
Valid reasons to contest a Will
There are a number of reasons a Will could be held invalid; the most common being lack of testamentary capacity, undue influence or fraud. Undue Influence can be raised where you believe the testator was pressured to write a will which they otherwise would not write (in other words, the Will does not reflect their actual intent). It is usually alleged where one of the testator’s children was taking care of their elderly parent. This situation often raises a presumption of undue influence. Another reason for challenging a Will is based on the formal execution requirements. If the Will was not signed or witnessed properly, this could be a valid reason for having the Last Will & Testament set aside.
How to contest a Will?
In order to challenge a Will, you need to file an objection to the Will with the relevant probate court. Not many courts provide a clear step-by-step guide for contesting a Will. Since it is a form of litigation (a lawsuit) in most states the procedure for contesting a Last Will and Testament is covered by the civil procedure rules rather than the probate code. This makes it even more difficult for ordinary persons to understand. This is why Will contests should be carried out by a qualified and experienced attorney. Make sure you observe the time limits. Many states only allow a limited time to contest a Will after it has been probated. In some states, probate is final and cannot be contested, making it necessary to challenge the Will before probate is issued. Contact your attorney for advice as soon as you have an issue with the Last Will. An attorney will be able to advise whether you have a strong case and the risk of proceeding.
Who may contest a Will?
A Last Will & Testament cannot be challenged just by anybody. Most states require you to be an ‘interested person’, meaning you are either: – A beneficiary under the Will; – An heir under the state intestacy laws; or – Have some other interest or property right in the estate. If you have a friend who wishes to contest the Will, you can’t start the action on their behalf. Only the person entitled to contest or their attorney may do so.
Penalty Clause against Contesting
The Will may contain a clause penalizing any person who contests it. In most states this clause is unenforceable if the person contesting had “probable cause” to issue proceedings. Florida prohibits this clause altogether. If you have been disinherited from the Will, then really you have nothing to lose from the contest. If the Will is found invalid, then you may get a share under a previous Will or under intestacy law. If the Will is valid, then any clause disinheriting you is worthless because you weren’t entitled to anything under the Will anyway. The clause is only likely to hurt you if you have been left a share in that Will. If you start an action without probable cause, then you may lose that share. If the Will contains such a clause, you must ask yourself (or preferably a lawyer) whether contesting the Will is worthwhile.