How to Contest a Will in Probate

By Teo Spengler

While TV sitcoms portray feuding children of dead millionaires duking it out in probate court, reality is often more procedural and less dramatic. In many states, only interested parties may challenge a will in probate court, meaning close relatives or heirs who might have been named under alternate wills. Disappointment and anger motivate many a will contestant, but actual will objections are procedurally limited to statutory grounds that might include fraud, forgery or undue influence. Consult with an attorney to review your options. advice.

While TV sitcoms portray feuding children of dead millionaires duking it out in probate court, reality is often more procedural and less dramatic. In many states, only interested parties may challenge a will in probate court, meaning close relatives or heirs who might have been named under alternate wills. Disappointment and anger motivate many a will contestant, but actual will objections are procedurally limited to statutory grounds that might include fraud, forgery or undue influence. Consult with an attorney to review your options. advice.

Step 1

Review the section of your state's probate code that enumerates grounds for bringing an objection to the will and, after reading the will carefully, determine whether you have a case. Proof of forgery (someone else signed the will instead of the testator) and fraud (someone deliberately mislead the testator into making will provisions) invalidate a will in every state. Undue influence is a common ground for a will contest; the influence must rise, some courts have said, to the level of substituting someone else's will for the testator's. Procedural issues are straightforward; their substance depends on the requirements for executing a will in your state. If your state requires two witnesses to affirm the will, failure to have two witnesses is a procedural ground for a will challenge.

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Step 2

Learn basic probate procedures about will contests. Visit probate court and ask the clerk for copies of relevant probate statutes and local rules. Use any self-help materials the court provides. Visit the law library and ask the librarian to show you probate form-books for your state. Find out the following: the deadline for bringing an objection to the will, the form the objection must take in your jurisdiction and the appropriate substance for an objection.

Step 3

Draft an objection to the will in the form and manner required by the probate court. Include standing (your relationship to the testator or the will) as well as grounds for contesting the will. File this document with the probate court before the deadline. The court provides copies of your objection to relevant parties and sets a date for a trial on your challenge. Mark the trial date on your calendar.

Step 4

Prepare for trial. Gather documents supporting your claims and locate and interview witnesses. Amass as much evidence as possible on every issue you raise. Your specific claims dictate the type of evidence required to carry the point. Organize your claims and practice presenting them.

Step 5

Appear in probate court the day of trial. Make sure your witnesses appear as well. Present your arguments to the court and offer evidence to support each point. Convince the court that your objection is valid.

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How to Contest a Will Due to Undue Influence

References

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How to Break a Will or Probate

Probate is court-supervised administration of a testator's last will and testament. Upon the death of the person making the will, the executor files the will in probate court and begins to gather and inventory estate assets. Although the executor is usually selected by the testator and named in the will, the court reviews the procedure to assure honesty, accuracy and fairness. The court only approves a valid will, so anyone wishing to "break" a will or probate must allege and prove facts making the will invalid.

Can a Sister-In-Law Contest a Will?

A will contest is the legal procedure for challenging a will. In most states, only those having a pecuniary interest in the will may object to it. Under this rule, a testator's sister-in-law may contest the will only if she stands to inherit more money if the court invalidates the challenged will or provision of the will.

How to Contest a Will Provision

You don't need to throw the baby out with the bathwater. While many will contests challenge the validity of an entire will, others focus on one term. Some common legal grounds for challenging a will necessarily negate the entire document, but others — e.g., undue influence, forgery or fraud — may be limited to one late-added codicil. Like most contested litigation, will contests proceed in court following strict statutory procedures, and parties often choose to be represented by attorneys.

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