How to Contest a Fraudulent Last Will

By Heather Frances J.D.

The probate process is designed to ensure that only valid, accurate wills are enforced by court orders and as such, probate courts allow challenges to a will’s validity. State laws vary when it comes to the actual process for contesting a will -- as well as what constitutes fraud concerning a will.

Statutes of Limitations and Standing

Will contests generally take place in the probate court where the will was admitted, typically in the county where the deceased, known as the decedent, lived at the time of his death, or where he owned most of his property. Your state might have a statute of limitations that limits the time period for will contests. For example, will contestants in Alabama must file their contests within six months from the date on which the will was admitted to the court. In all states, the person filing the petition to set aside the will must have standing to contest it. In other words, the contestant must have some interest in the outcome of the contest. For example, an interested person is typically an heir of the decedent, standing to inherit under the state’s intestate statutes if the decedent had died without a will, or a person whose inheritance was greater in a prior will than in the one admitted to the court.

Fraud

Though the exact definition of fraud varies among states, it generally involves intentional false statements made by a party with the intent to deceive the decedent -- and that actually induced the decedent to make a will or add a specific provision to his will that he otherwise would not have had he not received fraudulent information. The contestant has the burden of proving to the court that fraud occurred -- and witness testimony or other evidence is generally necessary as proof. A proponent of the will might have the opportunity to refute the contestant's evidence with other evidence that shows the will was not fraudulent.

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Invalidating the Will

If the probate court concludes, based on the contestant’s evidence, that the will was fraudulently induced, it might invalidate any provisions induced by the fraud, or it may invalidate the entire will. If the fraud related to only one provision of the will, the court might decline to invalidate an otherwise valid will. If the entire will is declared invalid, the court could order the decedent’s estate divided among the decedent’s heirs according to the state’s intestacy laws. If there is a prior valid will available, the court could accept that will as the controlling will -- ordering the distribution of the decedent’s estate according to its terms.

No Contest Clauses

Some wills contain “no contest” clauses intended to deter will contests by punishing unsuccessful contestants. If a decedent’s will has such a clause but the challenger is successful in getting the will, or portions of it, declared invalid, the contestant might gain a larger inheritance than provided by the contested will. However, if the challenger loses the contest, he might lose his entire inheritance under the terms of the no contest clause.

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Contesting a Will in Kansas

References

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