— 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.
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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.
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.
Incapacity
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.
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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: