Posted in Triplett & Carothers on January 1, 2025

Did you know that your family and/or friends have the right to challenge your will during probate proceedings? They are even entitled to object to the validity of your will and various aspects of the inheritance left behind. As you can imagine, this can become very complex very quickly.

If you believe a will inaccurately depicts the mental state of whomever created it, you might be in a position to dispute its contents. However, just know that you have no argument if you don’t have evidence to support your claim.

This is one of many reasons why a will can be hard to contest. Not only is it a difficult process, but contesting a will tends to have a low success rate. But that’s not to say all hope is lost — courts often consider a wealth of factors when deciding whether or not to grant a petition to contest a will.

What are some challenges that could arise?

Here are four examples of issues that might arise when dealing with wills:

Example No. 1

Problem: The existence of another will is suspected.

Solution: It’s not unusual for more than one draft of a will to exist, and, after someone passes away, multiple versions of the will could be unearthed. This can lead to confusion at best and disputes between beneficiaries at worst. To prevent any undesirable circumstances, make sure every version of your will is dated. Also, include a clause that states your intention for the most recent version of your will to revoke all previous ones.

Example No. 2

Problem: Legal formalities were not followed during the creation of the will.

Solution: In order for a will to be valid, it must be signed in the presence of witnesses. If any legal requirements are overlooked, especially regarding those witnesses, the will can be contested. The best course of action is to make sure you observe all legal requirements to ensure the validity of your will.

Example No. 3

Problem: There is a lack of testamentary capacity.

Solution: If you did not have the mental capacity to comprehend the contents and nature of your will at the time you signed it, your will is open to being contested. To eliminate the chances of this, draft your will well in advance of any signs of cognitive impairment or poor health.

Example No. 4

Problem: Someone other than the owner of the will exerted influence over the person whose will it is, altering the intentions of the will owner and the overall distribution of the will’s contents.

Solution: This set of circumstances is known as undue influence, and it’s challenging because the person who holds the most knowledge about the situation is the same person who passed away. To minimize this risk, limit the presence of others during the estate planning process. Consider attending your attorney’s office alone or with only one person you trust, such as your spouse.

Who can contest a will?

In order to contest a will, you must be an heir, a family member, a beneficiary, a creditor or someone who has either a property right or a claim against the estate in question. Once you can confirm that you are one of the aforementioned parties, you can only challenge the distribution of an estate or its contents if you have a valid reason. But what constitutes a valid reason?

You must either be someone who is named in the will or someone who could inherit parts of the estate if the will is invalidated by the court, even if you are not named as a beneficiary. Furthermore, heirs have the right to contest a will if they are either omitted from the estate or they believe they received a disproportionately small share of the deceased person’s inheritance.

You also must be a legal adult in order to file a lawsuit to contest a will. However, the parent or guardian of a minor can act on behalf of said minor. Otherwise, a minor will need to wait to initiate legal action on their own until they reach the age of majority, which more often than not is 18.

Keep in mind that beneficiaries or heirs who unsuccessfully challenge a will might be disinherited if the will contains a no-contest clause. However, not all states enforce no-contest clauses, so this might not apply. In some states, you will still inherit what you would have originally had you not contested the will, even if you lose the lawsuit you opened against the estate.

The most expensive aspect of contesting a will is the cost of opening a case and going to court. However, depending on the size of the estate and the complexity of all that it entails, you might view this as a necessary evil.

While those around you might disagree with your decision to pursue a lawsuit, it might be necessary given the context of the situation. Ultimately, if you aren’t sure how to approach matters or you would benefit from legal guidance, consult with a probate attorney who has experience managing wills and estate plans. Look for someone who can offer advice while walking you through the steps of an estate litigation case.

Reach out to Roz Carothers and her team at Triplett & Carothers to learn more.

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