When there are multiple Wills, either of which might be offered as the final Will of a deceased person, it is typically viewed as a race to the Courthouse. The reason for this is once a Will has been accepted as the final Will by the Court, then an action will need to be filed to invalidate the Will which has been accepted. This is not impossible, by any means, but it is not usually easy… and it is certainly not cheap.
Probate Court Adjudicates the Will.
The point of probating a will is to validate its legitimacy and allow the beneficiaries to gain access to their inheritance.
If you want to contest a will – having the proper Will probated first is usually the best way to handle it.
If there is no competing Will (the issue is simply that the deceased person had no proper Will), or the Court accepts the invalid Will, then you will need to file an action to invalidate the Will. The judge will hear challenges to the legitimacy of the will. Common complaints are:
Once an action is filed, the judge will hear any evidence of the challenge and determine its merit based on probate law, which varies from state to state.
Be aware that about 99% of wills are probated without incident. The court typically perceives itself as a voice for the deceased and prefers to respect his or her last wishes.
If you want to contest a will during this phase of the process, it’s highly recommended you hire a lawyer experienced in probate litigation.
To maximize the chance of success of contesting a Will, efforts should be made to preserve evidence that could be lost with the passage of time.
Not all challenges come in the form of showing that a Will is invalid. For example, you may interpret a clause of the Will to mean one thing when others believe it means another. Also, the law provides that some people may receive part of an estate no matter what the Will says (such as a spouse that is not receiving anything in a Will).
Note of Caution
Emotions can run very high after death. Family members may feel they were treated unfairly or that promises were made by the deceased that weren’t kept.
But remember contesting a Will affects the rest of the beneficiaries – typically your family. A challenge to the will slows the probate process and the distribution of assets.
Not only will you very likely need to hire a lawyer, but the estate may also need to as well. Think carefully about your decision. The consequences for your relationships, as well as your wallet, may be significant and long-lasting.
It might be helpful to you and your family to consider mediation as an alternative to a legal challenge.
Download Free PDF Guide On The Probate Process
Contesting a Will After Probate
Let’s start by walking through the obstacles to your challenge.
As you can see, there any number of pitfalls in this process. Add to that, the longer it takes to mount a challenge, the harder it can be to find witnesses who still remember (or are willing to testify about) the circumstances. There are also a number of evidentiary issues the come up in these cases because the Court will not necessarily allow you to present all the evidence that you have.
Reasons to Contest After Probate
There can be legitimate concerns that motivate a challenge to an estate after the will has been probated. The obstacles and possible consequences still apply, but some circumstances may merit facing the risk.
Discovery of a more recent will: This makes a strong case for avoiding all or part of a probated will. Obviously, you would need to prove the legitimacy of the document.
The discovery of Paternity/Maternity: Though it sounds like a TV movie, an individual who can prove they are a child of the deceased but were ignored in the will may have a case to demand an inheritance.
Proof of Fraud/Criminal Conduct: This must be an evidence-based challenge, not speculation or mere accusation. If you have proof that signatures were forged or witnesses didn’t sign the document, bring it to an attorney.
State-Defined Provisions: Some states have established laws that require the state to provide certain assets to a spouse or child. If those laws were not followed, ask your lawyer if that is sufficient reason to challenge the will.
These are all hypotheticals – there is no guarantee any of them would result in the voiding of a probated will or even be allowed to reach the court.
We cannot overstate the need for an experienced probate lawyer. They may be aware of legal options that are not expressed here. They may also advise you that you have no grounds for your case.
How to Move Forward
The first step is to make sure you are still legally allowed to contest the will. There are deadlines which vary depending on a handful of circumstances.
Every state can set its statute of limitations to curtail challenges. Not only do you need to know the timeline, but you need to confirm when the countdown started. Review your case with your attorney. The more documentation you can provide – on dates, times, conversations – the better. Collect letters, emails, checks or any other relevant materials that demonstrate the credibility of your case.
It’s not suggested that you go about announcing you intend to challenge the will. (This applies whether it’s before, during or after the probate process.) If you are successful in getting your case on the docket, expect your motives and credibility to be challenged. If the court sees your claim as a resentment over the distribution of assets, they may be less inclined to listen. Your contesting of the estate needs to be an empirical mission, not an emotional outlet.
Remember that even if you can get your challenge heard, the legal process will move very slowly. If the estate is large, the heirs will not go down without a fight. Regardless, it will be a costly endeavor.
Being left out of a will is not a situation most people want to be in. But sometimes when a person dies and their will comes to light, its contents throw survivors for a loop. The will can exclude people who had assumed they would be included, or in some cases, who were told that they would be included. If you are left out of a will, there are some time-sensitive steps you should take to at least clarify what has happened—and perhaps contest it. In most cases, you must prove coercion, diminished mental capacity, or outright fraud to have a will's terms dismissed.
Before you put a retainer on a lawyer, engage in some sober second thought. If you are not family and were never named in a previous will, you have no standing to contest the will. If the testator (the deceased) discussed an inheritance with you previously, write down as much as you can remember. Using this, estimate the dollar value (whether money or possessions). If it was never discussed but was implied, you will need to give a high and a low estimate on what you could have reasonably received based on your knowledge of the testator's estate.
If this amount isn't enough to cover the cost of a consultation with an estate lawyer, walk away. Even if it is twice as much as the retainer, walking away may still be the better course as some of the worst estate fights cost more in legal fees than the inheritance. So, think carefully before you lawyer up.
Make sure contesting a will is a winnable and financially smart battle—being left out of a will is terrible, but wasting time, money, and emotions fighting a losing battle is worse.
Anyone who creates a will has the final say in who is and isn't in the will. If you believe the will has changed, perhaps under duress or diminished mental capacity, then you can hopefully find out the how and why. Ask the executor for the current will, any previous versions, and a list of assets.
A good executor will usually compare copies of the will and will note any significant changes. So it is possible that a notice from the executor will be your first clue that you were removed from the will. If you are not told before the will enters probate, you will be able to get a copy from the probate court. You will also be told how long you have to contest the will. States have different rules and timelines. You, so you may want to have a lawyer help you get the copy and file the contest sooner rather than later.
Remember when you calculated whether it was worth the legal fight? Now it's time to pay up. If you managed to get a copy of the will without a lawyer, you should now find one. Show the lawyer the will and state your reasons for wanting to file a legal challenge.
Basically, the testator has the right to disperse the estate according to whatever whim catches their fancy. To contest the will, you need a valid reason. These are fairly straightforward. You need to reasonably prove the testator lacked the mental capacity to understand what was going on when the current will was signed, they were pressured into changing it, or the will failed to meet state regulations and is thus not legal.
Your lawyer will be able to tell whether it is a winnable challenge on these grounds. If you don't have grounds, there is still the possibility you can make a claim on the estate. An example would be if you did unpaid work for the testator that you can claim costs for. Again, you would have to consider the value of the claim against the costs of making it.
If you have grounds, your lawyer files a contest against the will. The goal of this legal proceeding is to invalidate the current will and enforce a previous will that lists you as a beneficiary. If you have been left out of several revisions of the will, your chances will be slimmer because multiple wills must be invalidated. The burden of proof will also fall on you, so be prepared for a difficult fight.
Rather than fighting it out in an all-out court battle that will deplete you and the estate in legal costs, your lawyer may be able to guide the estate to mediation. Mediation may be able to get you closer to a resolution than a prolonged court battle.