Contesting a will in Kentucky is a highly regulated legal procedure that occurs in probate court. Under state laws, it can be brought only on very specific grounds and by someone who has a particular interest in the matter, termed standing. In addition, it must be brought within a time frame specified in the state laws, which is essentially the statute of limitations for the contest.
Contesting Only After Death
A will can only be contested after the person who made it has died. That is because, in Kentucky as in other states, a will is not set in stone while the maker is alive. The person who wrote the will can rip it up at any time or, even without destroying the document, can replace and nullify it by writing a new will.
Kentucky Probate Process
Once the person dies, the will can no longer be changed. It is filed in Kentucky district court as part of a probate process, a legal procedure for administering the estate, paying the estate debts, and distributing the remaining assets to those persons and/or organizations named in the will as beneficiaries.
As a first step, the person named in the will as executor petitions the court to admit the will into probate. Generally, one of the two persons who signed the will as witnesses must appear and testify that the will is authentic.
Alternatively, if the person making the will and the two witnesses signed the will in front of a notary, the will is "self-proved," and the court automatically admits it into probate.
Filing a Will Contest
Once the Kentucky district court admits the will, any interested person with standing has the right to file a will contest. The law allows only someone who has a real interest in the outcome of the will question to bring a contest. For example, a brother who was named as the sole beneficiary of the decedent's previous will has standing to contest a new will that cuts him out.
Note that standing has nothing to do with the merits of the will contest. Just because a person has standing to bring the contest in court does not mean that they have valid grounds for contesting the will.
Technically, the person with standing files the petition for contest in circuit court, not in the original county district court. However, they must file a notice of the contest in the district court where probate is pending.
When to Contest a Will
In order to contest a will in Kentucky, the contestor must file the petition in circuit court within two years after the district court acted on the petition to admit the will to probate. However, it is best to file earlier.
In Kentucky, a will contest filed within a year after the will is admitted to probate results in the freezing of the estate assets until the contest is decided.
Freezing the assets means that the executor cannot pay bills or distribute any assets to beneficiaries included in the will while the contest is pending. That ensures that, if the interested person wins the will contest, there will still be assets remaining in the estate.
Grounds for Contesting a Will
There are many different grounds for contesting a will in Kentucky. The most common grounds are:
- Undue influence: Contestor must prove that the person exercising influence has destroyed every chance of the exercise of the testator's own will in determining who should get the estate.
- Forged or fraudulent will: Requires proof that the testator's signature was forced or that they were persuaded that they were signing a different document.
- Lack of legal intent: If the writing doesn't seem to be intended as a last will or testament, the will can be thrown out for lack of testamentary intent.
- Improper execution: Details count when making a will. The will may be invalid if the testator did not use the required two witnesses or if they did not write a holographic will entirely in their own handwriting, as the law requires.
- Testator not an adult: Kentucky wills are valid only if made by someone at least 18 years old.
- Unsound mind: Contestor must prove that, at the time the testator signed the will, they were not of sound mind or did not have mental capacity.
- Existence of more recent will: A more recent will takes precedence over a prior will, and the prior will is deemed revoked.
- Ambiguous terms of will: Kentucky courts can invalidate a will if it contains an obvious mistake or ambiguity.
Potential for Success of Contest
Despite the fact that any of these grounds can be sufficient to win a will contest, most contests are extremely difficult to prove. The most likely ones to carry a will contest in Kentucky are:
- Forged will.
- Will written without following the formalities required by state law.
- Revoked will.
The more general categories, such as unsound mind and undue influence are very difficult to prove under Kentucky law. The issue of a will being drawn up by a minor is rarely a ground for a will contest since the judge would have noted this and not admitted the will to probate.
How to Contest a Will
There are several clear steps to take in order to contest a will in Kentucky. These include:
- Establish standing for a legal action. In Kentucky, this means that the person will be harmed in some way if the will is admitted to probate.
- Contestor then files the complaint with the circuit court and notice of the complaint at the district court.
- Contestor must serve a copy of the complaint on anyone who will benefit from the will that is being contested.
- Parties start exchanging evidence in a court procedure called discovery.
- Parties go to trial with their evidence and witnesses.
After a Will Contest
If a will contest is filed, but thrown out in circuit court for a technical reason or for failing to establish grounds for the contest, the original will is returned to probate. The administrator collects the assets, pays debts and distributes the assets to the beneficiaries.
If the will contest is successful, the outcome depends on whether there is a valid will. If so, that will is sent to probate. If not, the estate is probated under the intestate succession laws of Kentucky, with assets passing to close relatives and family members as set out in the state statutes.
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.