How to Contest a Will and When You Should

You may be able to contest a loved one’s will in certain situations, such as in cases involving fraud or coercion, or if the testator has multiple wills.

If you believe that a loved one’s will contains mistakes or is invalid, you might be able to contest it. Contesting a will is when a potential beneficiary or individual who could be affected by a will challenges the will in court. 

Contesting a will can be challenging, but if there are uncertainties about a loved one’s will it may be your best option to have your concerns heard.

Grief is hard, and it can be compounded when you're sure there's a problem with the will. This is what you need to know if you're considering contesting a will or wondering how to protect your will from being challenged.

Who can contest a will?

Before you do anything else about a will you have a problem with, you must determine if you have the legal standing to contest it. Generally, you have the right to contest a will if:

• You were the beneficiary of a prior will
• You are a beneficiary of the current will
• You are the beneficiary of a newer will made after the one in question
• You would be an heir if there were no will and intestacy law applied (this includes family members such as spouses and children, and possibly parents, siblings, and other relatives, depending on the family tree)

For instance, you may want to contest a will if you are an heir who would receive less from the will than you would have if your loved one had died intestate (without a will), or if you are a beneficiary who would receive less of the deceased person's assets from the most recent will than you would have under a previous will. 

Contesting a will in 5 steps

Once you've determined that you have legal standing to contest a will, the next step is the legal procedure. 

Step 1. Consult an attorney

Contesting a legal document such as a will can be an uphill battle, so it's best to get some solid legal advice about your chances before you do anything. An estate planning or probate lawyer can let you know what your options are and help you navigate the process of contesting a will.

Step 2. Understand the statute of limitations

Find out what the statute of limitations is on a will challenge in your state. This is the time period in which you must file legal papers. If the deadline passes and you haven't filed anything, you lose your right to challenge the will. It could be weeks, months, or years from the date of death or filing of the will with the court.

Step 3. File a petition in probate court

To challenge the will, you need to file a petition in the state probate court. The petition notifies the court and the estate that you are contesting it. 

Each state has its own forms and probate process, so you should check with the probate court office or hire an attorney to learn how to file a petition in your state.

Step 4. Gather the evidence needed to contest a will

Next, you will need to gather evidence to support your case. Evidence can include different versions of the will, medical records, and witness testimonies.

For example, you might need to get medical records to prove that your loved one was suffering from memory problems, or statements from witnesses who observed the decedent’s behavior around the time when the most recent will was drafted. 

Step 5. Settle or go to court

Your case could settle, or it could go to a hearing. 

The court process can involve the following:

• Discovery. The discovery stage is when involved parties gather evidence to support their case. 
• Depositions. A deposition is when one party asks the other party or a witness to respond to questions under oath. Your attorney can help you prepare for any questions you may be asked and use the deposition process to tell your side of the story. 
• Mediation. Mediation is a dispute resolution process that your attorney may suggest as an alternative to going to trial. A neutral third party—the mediator—works to help the parties come to an agreement. If all parties can agree to a settlement, then you may not need to go to trial. 
• Hearing. If a settlement can’t be reached, you may be required to attend a hearing (or multiple hearings). During the hearing, the court will look at the evidence, and the judge will determine whether the will is valid.

When can you challenge a will?

Once you have legal standing to contest the will, you also need a legal reason to challenge it, called the grounds. Just being unhappy with what you have inherited is not a good enough reason.

Matthew Erskine, of Erskine & Erskine in Worcester, Massachusetts, explains, "The biggest misconception is that a promise to leave something to you in their will is enforceable against the estate. So, if Grandma says, 'I will leave this chair to you in my will' and does not, in fact, leave you the chair in her will, you have no grounds to challenge the will unless there is some other evidence that shows that she intended to make the gift but did not due to undue influence or incapacity."

These are the general reasons a will can be challenged.

Lack of testamentary capacity

This means the testator (the person who made the will) was not mentally able to make a will (this is sometimes called "being of sound mind"). Generally, a person has to be able to understand what they own, and its value, who their natural heirs are, what they are giving, and to whom. If you think the testator didn't understand those three things, and you have evidence that they were mentally incompetent, then you can challenge the will. Erskine explains, "You need more than just saying that Grandma was incompetent, you need to have actual proof that she was incompetent as far as making a will is concerned."

Fraud, undue influence, or forgery

If the testator created the will under duress (was forced to do so), was tricked into signing a will, or their signature was forged, the will can be contested. Erskine says, "Usually, successful will contests are when the deceased makes a sudden and unusual change in their estate plan, and there is evidence of undue influence."

Existence of another will

If there is a newer will than the one being probated, that is a reason to contest it. Sometimes there may be confusion as to which will is the most current, and that can also be grounds to contest it.

State requirements not met

Each state has its own laws about what a will must contain. If the will does not meet those requirements, it may be invalid. For example, some states do not permit handwritten wills that have no witnesses, while others do. Some states require two witnesses to a will, while others require three. Another wrinkle to this is that the will must meet the requirements of the state where the testator had their residence to be valid. So, if the testator was a resident of Texas, but the will was written in Wisconsin and conformed to Wisconsin law instead of Texas law, it might not be valid.

If you're unsure about whether you have grounds, you should talk to a lawyer. "People may underestimate how difficult it is to challenge a will and that the burden of proof is always on the person challenging the will," points out Weisman.

How to prevent your will from being contested

There are a few steps you can take that can help prevent beneficiaries from contesting your will, including getting witnesses and adding a no-contest clause to your will. 

The following tips can help reduce the likelihood of your will being challenged:

• Observe legal formalities. Make sure your will is compliant with applicable legal requirements. For instance, some states don’t allow handwritten wills that haven’t been witnessed (holographic wills), while other states require wills to be signed by disinterested witnesses (individuals who don’t stand to gain an inheritance from the will).
• Obtain witness signatures. It’s a good idea to have witnesses watch you sign your will—and add their signatures to your will—in the presence of a notary. You might also consider recording a video of the will-signing ceremony to quell future doubts about its validity. 
• Include a no-contest clause. You can add a no-contest clause (also called an “in terrorem” clause) to your will to discourage beneficiaries from challenging it. A no-contest clause states that anyone who contests your will and loses won’t get any inheritance that they otherwise would be entitled to. No-contest clauses aren’t always enforceable, so it’s important to talk to a probate attorney to make sure a no-contest clause will be effective in your situation. 
• Regularly update your will. You should update your will whenever you have substantial changes to your assets or circumstances, such as if you buy or sell property, get married or divorced, or have children. Updating your will to reflect changes to your circumstances can ensure that your will remains in alignment with your intentions. 

FAQs

How much does it cost to contest a will? 

The process of contesting a will can cost tens of thousands of dollars and legal proceedings can drag on for years. Costs can include court costs, filing fees, and attorney fees. 

Patrick Simasko at Simasko Law in Mount Clemens, Missouri, says, "Lawyer fees can range from $250 per hour to $750 per hour depending on the city or state you live in. The fights can also take many years."

What’s the success rate of contesting a will?

It's important to be aware that successful will contests "are extremely rare," according to Steven J.J. Weisman, of Margolis & Bloom, LLP and lecturer at Bentley University in Massachusetts.

You should talk to a probate litigation attorney to determine the best course of action for your unique situation. 

Can contesting a will affect my inheritance?

Yes, contesting a will can affect your inheritance. For instance, if you attempt to contest a will that includes a no-contest will and don’t win your case, you might not get any inheritance that you would have otherwise received.

How long do I have to contest a will?

The length of time you have to contest a will depends on the statute of limitations in your state.  

For instance, in Illinois, individuals who want to challenge a will must contest the will within six months after it has been admitted to probate, while in Texas, interested parties typically have two years after the will has been admitted to probate to file a will contest. 

Brette Sember, J.D., contributed to this article.