What Is Contesting a Will and Who Can Do It?
Contesting a will is a complex, stressful process. It’s expensive, time consuming and wrought with family tension.
But if you believe a family member’s will was improperly executed or you have other grounds for challenging the will, you may have a case.
We’ll dive into how to contest a will, who can do it, the costs involved and how to prevent someone else from contesting your own will in the future.
What Does It Mean to Contest a Will?
Contesting a will refers to the legal process of challenging the validity, terms or distribution of estate assets outlined in a deceased person’s will.
To contest a will, you need to have proper legal standing.
Keep in mind that laws governing wills and inheritance vary by state, so it’s essential to consult an estate planning attorney to understand your specific rights.
Who Can Contest a Will?
Beneficiaries of the current or previous will have legal grounds to contest it.
Also, a person who may have inherited something if the deceased person had died without a will (known as dying intestate) might be able to make a claim.
For example, in most states, if you’re unmarried without children, your parents are next of kin if you don’t have a will. If you drafted your will and left everything to your childhood best friend, your parents could potentially contest the will.
How Much Does It Cost to Contest a Will?
Each estate litigation case is unique.
That said, you can expect legal fees to start at around $5,000 in most cases — and that’s just the floor.
“When it comes to estate litigation, or any litigation, really, it’s not going to be cheap,” said Scott Glatstian, an estate planning attorney at Rosenblum Law.
Two factors can drive up the cost of contesting a will.
- The evidence: Is evidence readily available or does it need to be acquired through a dragged out discovery process and lengthy depositions? Do experts need to be called in?
- The opposing side: Is the opposing side willing to endure a prolonged fight? Do they have the resources? The more the opposing side is willing to fight, the longer and more expensive the case can be.
Many cases end up costing tens of thousands of dollars, Glatstian said, and these cases can drag on for months or even years.
Why Would You Contest a Will?
There are several valid reasons for contesting a last will and testament. A court of law will decide if you have any standing.
Here are the main reasons.
- Lack of mental capacity: A will can be deemed invalid if the person who created it — known as the testator — lacked the mental capacity to understand what was happening. This is also known as testamentary capacity.
- Undue influence: If it can be proven that the testator was coerced, manipulated or influenced when making or amending the will, it might be deemed invalid.
- Fraud or forgery: If there’s evidence the will was fraudulently created or the creator’s signature was forged, it can be deemed legally invalid.
- Vague or conflicting provisions: An estate plan with contradictory or vague language may lead to disputes among beneficiaries.
Other reasons a will might be contested include disinheriting a child or spouse in favor of a friend or other family member, not leaving children equal shares of the estate and suddenly changing a significant portion of the will.
6 Things You Should Know Before Contesting a Will
Contesting a will is full of legal complexities and emotional challenges. Before you dive into this exigent process, make sure you understand the steps involved.
1. Get Legal Advice
You’ll need a lawyer to navigate the complex process of contesting a will.
Laws governing wills and inheritance are intricate and vary by state, which is why it’s vital to consult with an experienced estate attorney who specializes in will contests with a history of successful litigation.
2. Understand the Grounds for Contesting a Will
You need to have a valid reason and legitimate grounds for contesting a will after a person dies (potentially one of the scenarios discussed earlier).
Each probate court can have its own specific grounds, so consult with your attorney to determine the right legal standing for your case.
3. Gather Evidence
Evidence can make or break any case — including contesting a will.
Your attorney will guide you through the process of collecting and organizing the necessary evidence to present your case. This could include a prior will, medical records of the will’s creator, and communication supporting claims of undue influence or lack of capacity.
4. Consider the Emotional and Financial Costs
Contesting a will is like stepping into a legal battleground where emotions run high, wallets get thinner and family ties are strained.
You’ll need to lawyer up and potentially take family members to court. Things can get ugly — really ugly — fast.
Weigh the pros and cons of contesting a loved one’s will, and understand that you might be wrapped up in the probate process for a long time. Is the potential payoff worth everything you might lose in the process?
5. Be Open to Alternatives
Contesting a will may not be your only option. In some cases, mediation or settlement discussions can resolve disputes outside of probate court.
These methods might save you time, money and emotional energy. Your attorney can give you details about available alternative dispute resolution options.
6. Get Prepared for the Legal Process
Speaking with your lawyer and conducting your own research every step of the way will help you face the challenges ahead with confidence.
The first legal step in contesting a will is filing a formal challenge. This legal document notifies the court and interested parties that you’re disputing the will.
After the initial challenge, you’ll enter the discovery stage. This involves gathering evidence, interviewing witnesses and conducting research to build your case.
Next, you might have the opportunity to undergo mediation or settlement discussions, as we discussed in step 5.
If all else fails, the case goes to trial. Your arguments and evidence will be presented before a judge or jury, who will make a final determination about the contested will.
How to Prevent Someone From Contesting a Will
Worried about someone contesting your will? You can take steps now to make it more difficult for others to successfully challenge your final wishes in court.
Wills are usually contested on two grounds: undue influence and lack of capacity.
To prove you were fully aware of your decisions, speak with your attorney several times prior to signing the will to prove you’re not being pressured and you understand what’s going on.
Ask the lawyer to add a memo to your file describing these conversations.
“Those conversations can be referred to later on if there’s a contest,” said Glatstian.
Open communication with heirs is also key, since most will contests are the result of either someone not receiving an expected inheritance or receiving less than what they expected.
Another option is recording a video of yourself signing the will.
“While this may not necessarily be conclusive evidence in a will contest, it can’t hurt to record a video,” Glatstian said.
By addressing your family in the video and discussing your estate plan, you’re showing you’re of sound mind.
If all else fails, there must be witnesses present during the signing of a properly executed will.
“These witnesses, if needed, can be called in to testify to the testator’s capacity and whether there was any apparent influence at the time of signing,” Glatstian said.
Rachel Christian is a Certified Educator in Personal Finance and a senior writer for The Penny Hoarder. She focuses on retirement, Medicare, investing and taxes.