Contesting a Will as a Beneficiary

By Ellis Roanhorse

Will contests take place in probate court: One of the functions of probate court is to hear any disputes pertaining to the execution of a will. A beneficiary who seeks to contest a will must have verifiable grounds upon which to do so. If a probate court deems the evidence sufficient, it may declare the entire will invalid or merely strike certain provisions.

Contesting a Will Due to Lack of Formalities

Every state has laws that explain the formalities required for the making of a will. If a last will and testament does not conform to state-specific formalities, it may be open for contest. All states require a will maker, known as the "testator," to have testamentary capacity. This means the will maker must have the mental capacity to understand he is making a will, what his assets are and his relationship with the people he is leaving his assets to. A will must be in writing and signed by the testator. Attestation, or witnessing, is also a common requirement. Often, state law requires witnesses to be people who do not stand to benefit from a will's provisions. If a will fails to meet any such requirements of state law, a beneficiary may have grounds for a contest.

Contesting a Will Based on Undue Influence

If there is evidence the testator executed his will under the influence of another person, a probate court may declare the entire will invalid. When a testator executes a will under undue influence, it means his will was made while being psychologically or mentally controlled by an individual who stands to benefit from the will. For a beneficiary to contest a will based on undue influence, he may have to provide evidence showing the perpetrator participated in the making of the will and was someone the testator trusted. Undue influence may also be proven by the fact the perpetrator received an unexpectedly large share of the estate.

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Contesting a Will Based on Duress

A beneficiary may contest a will if he can provide proof the testator was under duress at the time the will was made. Duress involves threats of physical violence, restraint or coercion. For example, a person is under duress if he feels he has no choice but to leave his entire estate to someone who is threatening to hurt him or his family. For a beneficiary to prove duress, he would generally have to prove the person named in the will was someone the testator trusted and not someone expected to receive an inheritance.

Will Contests in Court

A beneficiary may contest a will if he has a valid reason, such as a belief the testator lacked testamentary capacity or the will was made under undue influence or duress. Generally, wills are presumed to be valid. Although the standard varies from state to state, a beneficiary may be expected to provide clear and convincing evidence the will is invalid. Probate court procedures vary; however, a beneficiary is typically required to file notice of a will contest with the probate court where the will was admitted. Once a probate court agrees to hear the will contest, a beneficiary will have to testify in court. If the court is convinced by the beneficiary's evidence, it may declare the entire will invalid. If the entire will is declared invalid, the beneficiary will receive his portion of the estate as required by state law.

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Contesting a Will in Kansas


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How to Contest a Will in Colorado

To contest a will in Colorado, as in other states, you must be an "interested party," which means you must stand to gain from the will in some way. You must also have valid grounds upon which to contest the will. In Colorado, valid grounds to contest a will include lack of testamentary capacity, undue influence or failure to adhere to the state's prescribed formalities such as lack of witnesses, among other oversights.

What Constitutes Fraud When Contesting a Will?

One common ground for contesting a will is that the will was the result of fraud. If you can prove fraud, some or all of the will may be invalidated, and the property will pass according to the state's rules for intestacy; that is, for people who die without leaving a will or other means to dispose of their property.

Rules for Witnessing a Will

A last will and testament is a powerful legal document that instructs the executor of an estate how to distribute the property of the writer of the will, known as the testator, after he dies. Because of the potential and motivation for fraud, state governments have passed laws imposing strict restrictions on the format of a will. All states require that the testator's signature be witnessed.

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