What Are the Chances of Contesting a Will and Winning?

By Stephanie Kurose, J.D.

What Are the Chances of Contesting a Will and Winning?

By Stephanie Kurose, J.D.

Because wills are presumed to be valid by a court, it can often be difficult to challenge a will and win. When someone wants to contest a will in probate court, they are essentially asking the court to rule on the will's validity. Many people decide to contest a will on the grounds that the testator—the person who made the will—did not have the capacity to make a will, was unduly influenced by a third party, or made a mistake when drafting the will.

Last will and testament

Interested Parties

The majority of states only allow "interested parties" to contest a will in probate court. State laws and definitions may vary, but an interested person is typically considered anyone who is impacted by the outcome of probate proceedings. For example, they may have a financial interest in the deceased's estate or a legal obligation to the estate. Interested parties may include heirs and beneficiaries, creditors, or fiduciaries.

An interested party must prove they have an interest as to the will's validity. Parties who are specifically named in a will have a clear interest. But even if there isn't a will, someone can prove they have an interest if they would be eligible to inherit estate property under the state's laws of intestate succession.

Contesting a Will

When an interested party wants to contest a will, they must do so within the set period of time allowed by the state. This could be anywhere from six months to 20 years depending on the specific state. The time starts running as soon as the will is submitted to probate court. Interested parties must be notified by the estate executor when this happens. If an interested party waits too long to file a will contest, they are time-barred from challenging the document.

The interested party must have valid grounds for questioning the will's validity in court. The four main reasons for will contests are:

  1. The will wasn't signed with the proper legal formalities.
  2. The testator lacked the capacity to make a will.
  3. The testator was unduly influenced by a third party when making the will.
  4. The will was procured by fraud.

The interested party must produce proof to back up their legal claim. The probate court listens to the evidence from both the estate and the interested party and then rules as to whether the will is entirely invalid, partially invalid, or entirely valid. If the entire will or parts of the will are deemed invalid, those parts are governed by the state's default laws of intestate succession.

No Contest Clauses

Many wills now include "no contest clauses," which state that any beneficiary who contests a will and loses gives up their share of the estate. These are typically added to discourage any frivolous lawsuits brought by a bitter party.

Some no contest clauses also require the losing party to pay the attorney's fees and costs for both sides of the case. Thus, an interested party who wants to contest a will should be aware of these types of clauses and carefully consider whether challenging the will is worth the risk.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.