While Estate Planning can be an effective tool intended to help us deal with loss, there are times when parts of a plan can create tension. Still, the act of creating a comprehensive, thorough Estate Plan is an important part of life.
But what do you do if you feel that something in a Will just doesn’t seem right?
Find out everything you need to know about contesting a Will, including:
Can a Will be Contested?
Yes, a Will can be contested. Though there are specific steps associated with doing so, and specific times that it would be appropriate. We’re covering how to know what your chances of successfully contesting a Will are and how to set up your own rock-solid Estate Plan so you can protect your loved ones.
Grounds for Contesting a Will
There are a few legal reasons that may allow you to contest a Will. Keep in mind, you cannot contest a Will simply because you don’t agree with it or don’t like it. And you should know ahead of time, even if you have a valid reason, the process can be somewhat complicated (not to mention, often very expensive) to get through. Still, if you feel that you have a legitimate reason to contest a Will, understanding your rights and the process can help you.
Here are the main valid reasons you may be able to contest a Will:
Problems with the Testator
The Testator is the person who creates a Will (the Will owner). If you believe he or she was under duress, under the influence of a pharmaceutical or alcohol, mentally incompetent or anything else that would result in not being able to rationally and coherently create a Will, you may have grounds to successfully contest it.
The Will is Legally Invalid
There are multiple circumstances that could result in a Will being deemed invalid. For example:
It wasn’t signed in accordance with local state laws
There weren’t the appropriate number of witnesses
It wasn’t notarized and state law says it needs to be
It is incomplete
There are multiple versions floating around
If any of these are found to be true, the Will might be deemed invalid by a court of law.
The Will is Fraudulent
If a Will is found to be fraudulent, it will automatically be thrown out. This may be the hardest to prove, but if you feel that the Testator was tricked into signing the document, it would be considered fraudulent and not valid. Often, a Will that’s found fraudulent would likely also coincide with the signer’s mental capacity.
Steps to Contesting a Will
If you are fairly certain that a Will is invalid for any reason, you may want to consider contesting it. But first, you must consider the following:
Make sure you have standing to contest a Will: You need to be legally allowed to actually contest the Will in order to do so. Not just anyone can contest a legal document like a Will. Only if you would personally stand to benefit or be affected by the outcome of the case, would you potentially have grounds to contest a Will.
Keep time in mind: Even if you have a valid reason to contest a Will, you do not have all the time in the world to do so. You want to check state laws where the Testator lived when he or she passed away to determine how long you have to contest their Will. Time limits will vary - some states give you just a few weeks, while others give you a few years.
Make sure you have grounds for contesting a Will: Remember that you cannot contest the Will just because you don’t like it. Keep in mind those valid reasons we shared above that explain grounds. One or more of the following needs to be true:
The Will was created by a Testator who either lacked mental capacity or was influenced
The Will was invalid due to improper signing and legal formalities
The Will was a result of fraud
Follow the steps below to go through the process and to improve your chances of successfully contesting a Will:
Determine validity: Be able to clearly state why you think the Will is invalid. Check signatures and assess if there was fraud or undue influence. Consider the Testator’s mental capacity at the time of signing.
Research: Review the laws in your state and check that the Will does not have a no-contest clause. If there is a clause that states repercussions for anyone who contests, you’ll have to really evaluate the risk-reward scenario for moving forward.
File a petition: Before you can contest a Will, you need to file a petition to challenge it in a probate court. You can do this yourself, or you can hire an attorney who specializes in Estate Planning to help you.
Collect your evidence: After you file a petition, you will get a court date. Use the time you have before your court date to gather any evidence you can find that will support your case.
Go to court: Once your court date arrives, you’ll be responsible for proving the Will is invalid. You can use witnesses, statements and documents to support your case.
Cost of Contesting a Will
Even if you have a good case, cost is something you should definitely consider before you go through the process. Especially if you end up needing to hire an attorney, you should expect it to cost quite a bit before you’ll come to any sort of resolution. And remember, there are no guarantees that you’ll come out victorious. Some estimates put the cost to contest a Will at anywhere from $10,000 - $50,000. Obviously the size of the estate will have a lot to do with how far you want to go.
How to Ensure Your Own Will is Protected (& Won’t Be Contested)
Remember that the more ironclad your Estate Plan is, the less likely your loved ones will have to deal with the fallout of any questions or contention surrounding your estate. Be sure you understand state law where you are, and that you fully execute your Will appropriately according to those laws.
And remember, though it may feel overwhelming, Estate Planning does not need to be overwhelmingly difficult. Online platforms like Trust & Will make it easy for you to create a plan that is effective, affordable and clear, so your loved ones will have no questions about your intentions. You should also know that Trust & Will documents are all created by experienced, knowledgeable Estate Planning attorneys. We make it easy for you to not only create, but also to update your plan whenever you need to. And we’re here for you 100% of the time, every step of the way.
Grief is already a stressful time. Add to that contention or disagreements about any part of an Estate Plan, and you may find yourself in a situation that’s both painful and emotional to deal with. The best way to avoid any of this is to create a plan that you know will be explicit and concrete. That's why we suggest not waiting another day to start your Will with Trust & Will.