Laws on Contesting a Will

by Carrie Ferland

While a will is intended to convey the final wishes of a decedent, occasionally circumstances impede the decedent’s ability to establish a true and valid will. Perhaps a greedy family member takes advantage of a dying testator and coerces a few last-minute revisions to the will. In a case such as this one, the remaining relatives can file a claim contesting the final will to overturn its validity and seek intestacy probate.

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Standing to Contest

The law does not permit just any party to contest a will; to challenge the validity of a will, you must have a standing to bring a claim. In general, two classifications of persons can contest a will: the beneficiaries who are named in faciem (literally, “on the face”) and persons who are not named as beneficiaries and/or are explicitly excluded as beneficiaries but who would inherit from the testator in the absence of a valid will. A person who is not named in faciem must show the court that if the will were declared invalid, intestate succession laws would name him as a beneficiary to the estate.

Grounds to Contest

If you have valid standing to contest, you must then prove you have grounds to contest. Few permissible reasons exist for contesting a will. In most states, a claimant can contest only on grounds of limited or no testamentary capacity, whether due to age or failure to meet other statutory requisites; the testator being of unsound mind at the time of executing the will; duress; threat or coercion; and undue influence. "Fairness” is not a ground for contesting a will, and the courts will not consider what a claimant believes is an unfair inheritance.

Contesting by Election

Contesting by election is a challenge on the grounds that the testator cannot legally disinherit the claimant. Contesting by election is not a challenge to the validity of the will but against the testator’s legal ability to preclude certain persons as beneficiaries. To bring a claim of election, you must be the surviving spouse, minor child or legal dependent of the testator and receive less under the terms of the will than you would by intestate succession. If successful, the will itself is not overturned, but the court awards you a portion of the estate equal to what you would have inherited intestate and administers the remaining estate according the provisions within the will.

Statute of Limitations

A statute of limitations places restrictions on the time period during which a claimant may file suit. Every civil matter has an affixed statute of limitations, including challenges to a will. The actual length of the limitation varies according to state law, but the average statute of limitations is four years after the testator’s passing. Many states shorten the statute of limitations significantly -- sometimes to as little as six months -- after a will completes probate. Once the statute of limitations expires, no person can contest a will, regardless of the grounds or the validity of the will.