Ways to Contest a Will in Alabama

Will contestants may stand to lose a right, benefit or interest if a will is treated as valid. Accordingly, the "person interested" in a will may contest it. The "person interested" must be a purchaser of property from the decedent's estate, a beneficiary under another will, a person claiming through the decedent or otherwise someone who has a direct legal or equitable interest in the estate property. By express statute, those who would inherit, had the decedent not left a will, can contest the will.

A contestant may claim a defect in the execution of a will or that the maker of the will (testator or testatrix) did not have sufficient mental capacity to make a will. A valid will requires that the maker be at least 18 years old, have sufficient capacity to understand, generally, the effect of making a will and that the maker acted freely and willingly. The maker must sign in the presence of at least two witnesses.

A contestant may file a challenge with the probate court so long as it has not admitted the will. The probate court formulates issues based upon the objections presented by the contestant. The probate court designates, as plaintiff, the person who seeks admission of the will and, as defendant, the contestant. Upon request of either party, the court must conduct a jury trial on the issues formulated.

As an alternative to filing a contest in the probate court, a contestant may file a lawsuit in the circuit, or trial, court within six months after the probate court admits the will. The circuit judge may order a jury trial or may proceed without a jury. The probate court transcribes the testimony and evidence of probating the will into writing. The jury or judge considers the written evidence.

An untimely contest deprives the court of subject matter jurisdiction, or authority to consider objections or challenges to the will, regardless if the party supporting the will does not raise lack of authority, or jurisdiction. Subject matter jurisdiction involves the court's power to consider a particular type of case. Parties cannot give a court permission, whether expressly or by waiver, to hear a case in which it has no authority to consider the subject of the proceeding.