How to Contest a Will if a Person Is Incompetent

By Beverly Bird

Sometimes heirs and beneficiaries react with shock when they learn the contents of a loved one’s will. If dear Aunt Ethel leaves her considerable fortune to her neighbor’s dog, her relatives usually have recourse to alert the court that she was probably mentally incompetent at the time she wrote her will. However, if she left every dime to a human beneficiary other than you, most courts will honor her wishes, at least without compelling proof that she wouldn’t have done so if she’d had all her faculties about her.

Testamentary Capacity

Most states base testamentary capacity -- the mental competency to make a will -- on three criteria. The testator, person who creates a will, must understand that she is directing the transfer of her property after her death. She must possess an awareness of what property she owns, and she must be able to identify her family members, whether she mentions them in her will or omits them. These are relatively easy criteria to meet. For example, if your loved one wrote you out of her will days before her death because of an imagined slight that occurred only in her own mind, the court will probably not invalidate her will on grounds of testamentary incapacity. Right or wrong, she possessed an understanding of what she was doing.

Mental Disorders

Mental incompetence resulting from a physical condition is usually more definitive and easier to assess. Some states, such as California, include provisions in their statutes for these situations, separate from legislation addressing testamentary capacity. However, these laws also possess loopholes. If the testator writes her will in March, then her physician diagnoses her with Alzheimer’s in October, she was technically of sound mind at the time she created her will. You may not win a will contest if you try to prove otherwise. If she was clear-headed, then immediately experienced a confused spell right after she signed, her condition might not be enough for a court to invalidate her will.

Protect your loved ones. Start My Estate Plan


Time is usually of the essence if you want to contest a will. Although deadlines vary among states, you must generally file a legal action with the court very soon after the will’s executor submits it for probate. Some states, such as New Jersey, require you to file an objection to the will, called a caveat, even before the executor submits the will for probate. State laws usually also restrict who can contest a will. You must have "standing" -- for example, if you’re so closely related to the decedent that you would have inherited had she not left a will or if she mentioned you in the will specifically to disinherit you. After you file your objection or challenge, the court schedules a trial to decide whether it has merit.


Will contests are complex legal procedures, particularly when you’re claiming the testator was mentally incompetent. Your chances of success usually increase if you enlist the help of an attorney. You must produce irrefutable legal proof of your loved one’s mental condition, and its timing is critical. You’ll probably need the testimony of witnesses who can state, for example, that your loved one did not know you or recognize you within days of signing her will, regardless of the fact that she gave birth to you. Witnesses can also document bizarre behavior on the part of your loved one, occurring within days of the date of the will. If you can produce a previous will that seems relatively normal, this might offer additional proof that your loved one was not of sound mind when she replaced it with one that seems inexplicable.

Protect your loved ones. Start My Estate Plan
How to Contest a Will Proving Incompetence


Related articles

Can Wills Be Contested?

Wills can be contested, but the process is subject to complex laws that vary from state to state. If you believe you have cause to contest a will, immediately contact an attorney to learn the rules for doing so where you live. The burden is on the person contesting the will to prove that it should be set aside, so will contests are not typically easy to win.

Why Do People Contest Wills?

According to the Legal Awareness Series, Inc., people contest wills more often than any other document, despite the difficulty of winning a will contest. If the terms of a will are completely at odds with what you think the deceased would have wanted, it might be worthwhile to challenge it. Anyone who contests a will has to have legal standing, meaning that they are a beneficiary listed in the will, or should have been. The time limits and court rules for doing this vary from state to state, but as a general rule, you might not have a lot of time.

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 is in valid form and that it actually expresses the deceased's wishes. When someone makes or changes a will while dying of a terminal illness, special concerns arise concerning the dying person's mental competence.

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

Related articles

What Is the Act or Process of Proving the Validity of a Will?

Before a court can probate a will, it must determine that the will is valid and authentic. Although laws vary from ...

What if an Executor of an Estate Destroys the Decedent's Last Will & Testament?

When a person draws up her will, she may think her work is done. A valid will sets out a road map as to what will ...

Can You Contest a Will When the Testator Was Medicated?

Testamentary capacity is perhaps one of the most-cited reasons for challenging the validity of a will during probate, ...

How to Contest a Will Due to Alzheimer's

An objection that a decedent was suffering from Alzheimer’s disease and was mentally incompetent when she made her will ...

Browse by category
Ready to Begin? GET STARTED