Contesting a will: How to contest a will and why

Even though contesting a will is usually an expensive and long process, it might be the only way for you to recover the property that belongs to you when a loved one passes away.

A document which states the wishes of a person when they die is called a last will and testament. A will is a crucial part of estate planning, and it basically has a legal mandate detailing how the property of the deceased should be distributed. Beneficiaries are listed in the will; those individuals or companies you want your property to be distributed to after you pass away.

Regarding the beneficiaries, while others get precise bequests, there are others who will get what is called the residual estate, which consists of the remaining assets.

A situation can arise when someone is not happy with their particular share of the estate, or maybe they were not included in the will but they feel that they should have been. In that case, that person can contest the will. When you contest a will, it means that you are challenging the terms of the document in probate court. This is usually done with the assistance of a lawyer.

However, a lot of the claims are not a success. This is because one has to have a legal basis to contest it; you don’t do it simply because you feel like it. Plus, you have a better chance of success if you are already listed as a beneficiary, your name was in an earlier will of the deceased person, or you were entitled to inherit property had that will never be drafted.

In order to have a legal basis to contest a will, you have to be in a position to prove some kind of illegality in the way the will was drafted. However, even if the way the assets were distributed may seem unfair, you will not succeed with your claim if the last will and testament is ironclad.

The following “interested parties” have legal standing for contesting a will:

Beneficiaries already listed in the will

Beneficiaries listed in the deceased’s previous will, those written out of the newest will, or those who had their share of the estate substantially reduced by the recent will.

Someone who is not listed in the will but who qualifies to benefit from the estate as a result of the state intestacy laws. That person is eligible to benefit even in the absence of a written will. A good example is a spouse or a child.

Even if you have standing, in order to contest the will, you must have a very good reason. The following are the legal reasons why someone might challenge a will:

The testator lacked mental competence

The testator who wrote the will, must have sufficient mental capacity to draft the will.

A testator who drafts the will with a sound mind is said to have what is called testamentary capacity. What that means is that the testator comprehends the consequences of drafting the last will and testament, naming beneficiaries and also understands his estate’s nature.

The testator was unduly influenced

If the testator was maliciously convinced by anyone, even a relative, to leave them a bigger share of the testator’s estate, that is referred to as undue influence. If the testator drafted the will under undue influence, then the will can be contested in court.

As long as the last will and testament is not legally valid, it can be contested. A valid will has to follow specific laws:

One of the requirements is that the will must be signed by two witnesses. There are some states which have a requirement that beneficiaries cannot be witnesses.

In cases where the testator has modified the will, he or she must make sure that it is also signed by two people.

It is within the testator’s right to allocate the property specified in the will. However, when it comes to community property, if the testator’s spouse is alive, he or she has no right to allocate property that was accumulated during the course of the marriage.

The testator was not deceived into signing the last will and testament

If the will was forged or drafted fraudulently, it will be considered invalid. As for holographic wills, even though some states consider them to be valid, they are vulnerable to challenge. These types of will are handwritten, and sometimes they don’t have the required legal formalities.

There is a more recent version of the will

If the testator makes some changes to his will, the recently modified will annuls any other will that was drafted prior to it. As long as the new will has been drafted properly, that is the one which is considered as valid.

The testator can change his or her will by adding a codicil. However, a codicil does not nullify previous wills. In fact, to prevent confusion for your beneficiaries, it might be better to just draft a new will.

The will is not complete

A will which does not meet specific legal standards is an incomplete will. The will is incomplete if it is not signed or it has blank spaces that need to be filled in.

How to challenge a will

The time you have to challenge a will depends on the state which you live in. You will know that you do not have a lot of time the moment you get the notice of probate. This basically informs you that the writer of the will has died the estate is being distributed accordingly.

If you want to challenge the will, this is the time to file your claim. This period of time is referred to as the statute of limitations. Make certain that this period does not run out, otherwise you will not have many options in as far as legal remedies are concerned.

In order for your claim to be successful, it would be better for you to seek the services of a lawyer; someone who’s an expert in the law. The lawyer will file the claim for you. Apart from increasing your chances of winning, the lawyer will also save you time, especially if you are a busy person.


There are chances that if you decide to challenge the will, you might not succeed. This will result in the delay of probate by years in some instances. That is why a settlement is the best way to go for some beneficiaries. You might end up receiving less than you anticipated but you will have saved yourself from paying legal fees and going through a long probate process.