How to Contest a Legal Will

By Teo Spengler

Just because an executor files a will in probate court does not make the will valid, and a trial ensues if challengers file objections to the purported legal will. While probate rules vary among jurisdictions, common grounds for will contests include fraud, or when someone tricked the testator into making or changing will provisions, for example; undue influence, or when someone pressured a vulnerable testator into making or changing will provisions; and improper execution, or when the will was not signed in conformity with state law.

Step 1

Review a copy of the purported will filed in probate. Read any later-added sections -- termed codicils -- with special care. Note the date the will was allegedly signed and the dates of all codicils. Review earlier wills, if any, comparing provisions and relevant dates. Construct a rough time line of the last years of the deceased's life, inserting will and codicil dates as well as notes on the state of the testator's health and on his medicines or medical treatments during the period. Consider who was with the testator most frequently, how they were treated in the will and whether this was a great departure from prior wills. From this review, identify for yourself the exact circumstances on which you base your objections.

Step 2

Obtain a copy of the will contest section of your state's probate code from a local law library or the probate court clerk. Determine the statutory grounds appropriate to your objections. While questions of forgery and execution -- whether the testator signed before an appropriate number of witnesses -- are fairly straightforward, fraud and undue influence grounds sometimes overlap. Fraud requires a deliberate intent to mislead the testator in order to get him to alter the will -- for example, a false statement that the testator's son is in prison. Undue influence involves pressure exerted on a vulnerable testator by someone in a confidential relationship with or without misstatements.

Protect your loved ones. Start My Estate Plan

Step 3

Draft an objection to the will in the form required by your jurisdiction. Ask a probate court clerk or law librarian any questions that may arise. Include in the document a statement of your standing to contest the will. Most states only permit persons having a monetary interest to challenge a will; if you won't inherit more property by winning the will contest, you cannot contest the will in these jurisdictions. File the original of your objection with the probate clerk within the time allotted in your jurisdiction. The court then assigns a trial date and provides notice to all interested parties.

Step 4

Gather evidence. Collect relevant document and talk to potential witnesses. Tailor your evidence to your argument; the form and sufficiency of evidence varies depending upon the grounds for your challenge. Remember that challengers generally bear the burden of proving allegations of misdeeds such as fraud and undue influence, while those defending the will must establish that it was executed correctly.

Step 5

Appear at the hearing with your witnesses and evidence. Do not attempt to use legal terminology. Present your case in simple, normal language. Convince the court that your challenge is well taken. The court either rules on the will contest after all evidence is presented or, more typically, takes the matter under advisement and mails a written decision to the parties.

Protect your loved ones. Start My Estate Plan
How to Break a Will or Probate
 

References

Related articles

How to Prevent Someone From Contesting a Will

A contest to your will may drag out the legal proceedings for your estate, deplete the inheritance you left for your loved ones, and cause ill will in your family. Any person with legal standing in your estate, such as an heir, has the right to contest your will in court. The basis for the contest depends on what the heir believes occurred, but some common claims in a will contest are fraud, undue influence — when one heir believes you were coerced into your will provisions by someone else — and the assertion that you were not mentally competent at the time the will was drafted.

How to Make a Legal Will in California

If you are a California resident who is 18 years or older, you can make a valid will without a great expenditure of time or money. Those with simple holdings can write a will themselves, dispensing with attorneys, notaries and even witnesses. The California Probate Code specifically approves a handwritten will -- termed a holographic will -- for state residents. While a holographic will is not for everybody -- more complicated estates might benefit from legal advice and tax-planning assistance -- a simple handwritten will remains a valid, viable option.

How to Make a Last Will Tape Recording

A recording of your last wishes does not constitute a valid will in any state, at least not when it stands alone. A great many individuals record their wills anyway, as a safeguard against will contests and other eventualities that might result in the probate court not honoring their bequests. Video- and audio-recorded wills generally enforce or back up your written will. If you don’t also leave a written will, most state courts will rule that you died without one.

LegalZoom. Legal help is here. Start Here. Wills. Trusts. Attorney help.

Related articles

How to Ask if You Are in a Last Will & Testament

You need neither legal language nor formalized procedure to ask if you inherit under a will; who and how you ask ...

How to Contest a Will in Probate

While TV sitcoms portray feuding children of dead millionaires duking it out in probate court, reality is often more ...

How to Contest a Will Because of Mental Capacity

You may contest a will if you're an interested party, such as an heir or beneficiary of the deceased person, known as ...

Last Will & Testament of the Terminally Ill

Because a last will and testament disposes of property when someone dies, courts are careful to make sure that a will ...

Browse by category
Ready to Begin? GET STARTED