How to Contest the Validity of a Last Will & Testament

By Fraser Sherman

A last will and testament expresses the testator's — the will maker's — final wishes. Courts prefer to respect those wishes, but it's possible to challenge a will successfully. You must have legal standing to contest a will, as well as grounds for proving it's invalid.

Interested Persons

Probate law says only interested persons — those with a stake in the estate — have standing to challenge a will. Interested persons include:

•Beneficiaries named in the will.

•Beneficiaries named in other versions of the will, if any exist.

•Individuals who would inherit if the deceased had died without a will.

Anyone with standing can contest a will, including friends, spouses, parents and children, although a minor child can't do so.

Grounds for Challenge

Having standing won't help if an interested person doesn't have grounds for invalidating the will. Some common grounds include:

Undue influence. A caregiver might manipulate someone who's old and dependent on her into writing a new will that benefits her.

Fraud. This might include a forged signature on the will.

Legal requirements. A will has to meet the standards set in each state's laws. Wills usually require two witnesses, and in some states witnesses can't also be beneficiaries. Handwritten wills aren't valid in all states. If the will doesn't meet one or more of the state's requirements, it's invalid.

Mental capacity. If the decedent was incapable of deciding how to distribute his property, this would invalidate the will. Probate law sets the bar for proving mental incapacity pretty high.

Age. Individuals younger than 18 can't usually write wills.

It's not grounds for a will contest just because you believe the will is unfair.

Tip

Some wills include no-contest clauses that disinherit anyone who contests their terms. Depending on state law and the circumstances, these clauses may not be legally binding. If you're concerned about such a risk, consult with a local attorney before attempting to challenge the will.

Will Contest Rules

After the will is admitted for probate, a clock starts ticking with a time limit for will challenges set by state law. For example, you usually can't contest a will more than three months after the court admits it in Florida. The time limit in Texas is two years.

You have to follow your state's legal procedure if you decide to fight a will. For example, a will contest must be filed with the probate court in Ohio, stating your grounds and explaining why you believe the will is invalid. You can ask for a jury trial if you want one.

Whatever your grounds, you must prove them in court. If you claim the testator lacked mental capacity, you'll need expert medical testimony to support this. You have to prove that someone was not only in a position to influence the testator, but that he did, in fact, exert that influence to prove undue influence.

Likely Outcomes

If you win your case, the court might strike down a particular provision in the will or it might invalidate the entire will. If there's an earlier legal will, that may become the binding document. If there's no alternative will, state law dictates how the estate is divided up.

About the Author

A graduate of Oberlin College, Fraser Sherman began writing in 1981. Since then he's researched and written newspaper and magazine stories on city government, court cases, business, real estate and finance, the uses of new technologies and film history. Sherman has worked for more than a decade as a newspaper reporter, and his magazine articles have been published in "Newsweek," "Air & Space," "Backpacker" and "Boys' Life." Sherman is also the author of three film reference books, with a fourth currently under way.

Cite this Article A tool to create a citation to reference this article Cite this Article