Advice on Contesting Wills

by A.L. Kennedy
A will contest is usually heard by a probate court.

A will contest is usually heard by a probate court.

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A will contest or a will challenge is a court case brought to dispute the validity of a will, according to FindLaw. In most cases, a will contest is filed with the probate court, and the executor of the estate is responsible for defending the will's validity. It may be wise to hire an attorney for a will contest. He will know your state's laws regarding will challenges, and may increase your chances of success.

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Why Do You Want to Contest the Will?

There are several reasons you might wish to contest the will. The most common reasons for a will contest include a belief that the testator, or person who made the will, lacked the mental capacity to make a will, or that someone else tampered with the will either through forgery or through forcing or coercing the testator into leaving something to her that the testator would have otherwise left to someone else. In order to contest a will in most states, you must be an "interested person," or someone who has something to lose or gain from the will contest. Most interested persons who contest wills are beneficiaries or family members, although creditors may also contest a will in most states, according to FindLaw.

What If I Don't Like How the Will Distributes the Estate?

If your only reason for contesting a will is that you are dissatisfied with your share of the estate or the way the will divides the estate among the beneficiaries, your case will probably be dismissed in most probate courts, according to the Smart Legal Forms Wills Guide. You must have a reason to believe that the will is not valid, apart from your dislike of your personal share or other beneficiaries' shares. An attorney with experience in estate planning can help you determine whether the distribution of the estate was the result of fraud, coercion or other valid grounds for bringing a will contest.

What Happens if I Win the Will Contest?

If your challenge to the will is successful, the probate court will declare that part or all of the will is invalid, according to FindLaw. Any property distributed by the will, or by the part declared invalid, will be distributed as if the testator had died without a will. Your state has particular laws, known as intestacy laws, that tell probate courts how to distribute property when there is no will. An attorney can advise you as to the intestacy laws in your state and whether you would be better or worse off if the intestacy laws, rather than the will, govern how the property is distributed.

Can the Will Prevent Me from Challenging It?

Most clauses in wills that specifically prohibit a beneficiary from challenging the will are not upheld in probate courts, according to FindLaw. However, many states allow testators to put in a "no-contest" clause. A no-contest clause states that any beneficiary who challenges the will and loses will forfeit his share of the estate. Before you decide to file a will contest, read the will carefully to ensure that it does not contain a no-contest clause, or be prepared to risk your potential share of the estate if it does.