Under Virginia law, only interested persons can contest a will. This can be done to either invalidate portions of a will presented for probate or to introduce a separate will that is believed to be the last will and testament of the decedent. Unless you are present at the proceedings in which the will is probated, you can file a challenge to the will only if you are an interested person.
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Verify your status as an interested person. An interested person is usually someone who is entitled to receive under the will, but could also be someone who has a statutory right to part of the estate, such as a spouse, or someone who would be entitled to property under the laws of intestacy if the will were invalidated. Simply being related to the decedent does not necessarily make you an interested party to the estate.
Identify a ground for challenging the will. You can't simply challenge a will because you don't like what it says. Instead, you must raise one of several recognized reasons for invalidating all or part of a will. Generally these involve the testator's mental state at the time of making the will, the failure to follow the appropriate formalities in executing the will or the fraudulent or undue influence of a third party on the contents of the will.
File a bill in equity either challenging the will or establishing a new will for probate. Under Virginia Code section 64-1.88, an interested person can file a challenge to the will. According to Virginia Estate Law, this challenge can be filed within six months of the order of probate if issued by the probate clerk or one year if issued by a judge. The bill should state why you are an interested person and your reason for challenging the probated will.
Attend a hearing. To prevent delay in administering the estate, the probate court will most likely quickly set your challenge for hearing, according to the Virginia Estate Law website.
Tips & Warnings
- Under the Virginia Code, you are entitled to a trial by jury on your challenge to the will, but the judge may dismiss your challenge if it is clearly frivolous and unwarranted. Even if your challenge is legitimate, there is the possibility that the dispute can be settled through negotiation without proceeding to a costly and time-consuming jury trial.
- Spouses domiciled in Virginia cannot be completely eliminated from a decedent's estate by will or otherwise. The spouse has a statutory right to an elective share equal to one-third of the estate if there are surviving children, or one-half the estate if there are no surviving children. A spouse entitled to an elective share does not need to challenge a will to receive this portion of the estate, but must file a claim against the estate within six months of the date of probate of the will.
References & Resources
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