What Are the Chances of Contesting a Will & Winning?

by A.L. Kennedy

    A will contest or will challenge is a case brought to a probate court in order to test a will's validity. Most will contests are brought on the grounds that the testator, or the person who made the will, did not have the capacity to make a will or was unduly influenced. Because probate courts assume that a signed and witnessed will is valid, a will contest can be difficult to win, according to FindLaw.

    Who May Challenge

    Only an interested party may challenge a will, according to FindLaw. An interested party is anyone who might lose or gain something if the will is carried out as written. While spouses are the ones who contest wills most frequently, you do not have to be the spouse or former spouse of the deceased person in order to challenge a will. You may be a child, a parent, another relative or even one of the deceased person's creditors.

    Reasons to Challenge

    Most will contests fall into one of two categories: either the testator did not have the mental capacity to make the will, or she did have mental capacity but was unduly influenced by another person, according to FinancialWeb. Occasionally, will contests are brought on other grounds, such as that the will is a forgery or the will puts unreasonable restrictions on a gift, such as requiring the receiver of the gift to remain single or change his religious beliefs, according to FindLaw. A spouse or child who has been excluded from the will may also bring a will contest, though these are rarely successful unless the state's laws prohibit the testator from excluding a spouse or child, adds FindLaw.

    Procedure

    A will contest proceeds much like a regular civil law case. The person who wishes to contest the will files a complaint to that effect with the probate court, and the estate's executor or personal representative must defend the validity of the will. Both sides may hire attorneys to handle their cases. In most states, the attorney defending the will's validity may be paid out of the estate's assets, according to FindLaw. The probate judge hears evidence from both sides of the contest and then issues his or her decision. The will may be found entirely invalid, may be partly valid and partly invalid, or may be held to be entirely valid. If the entire will or any part of it are struck down, the estate is distributed under the state's laws for those who die intestate, or without a will.

    No Contest Clause

    Although any interested party has a legal right to contest the will, an interested party who stands to receive some part of the estate under the will before contesting it should ensure the will does not contain a "no contest" clause before contesting it. This clause holds that any beneficiary who contests the will and fails gives up his share of the estate, according to attorney David N. Shaver. Some no contest clauses also require the losing party to pay the attorney's fees and costs for both sides of the case. Since will contests are difficult to win, anyone who stands to lose his share of the estate under a no contest clause should consider carefully whether challenging the will is worth the risk.

    About the Author

    A.L. Kennedy is a professional grant writer and nonprofit consultant. She has been writing and editing for various nonfiction publications since 2004. Her work includes various articles on nonprofit law, human resources, health and fitness for both print and online publications. She has a Bachelor of Arts from the University of South Alabama.

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