Losing a loved one can be the hardest thing in the world. Finding out you’ve been left of the will can also be extremely difficult because you might feel like you’re not getting what you deserve or what you should be given from the deceased person. You might be considering contesting the will.

If you believe there is a problem with the last will, you can try to rectify the mistakes by contesting the will. Try not to make your grief or experience harder than it should be if you find out the assets are not divided how you expected. Learn everything you can about the contesting process to see if it can help you.

Who Has the Right to Contest a Will?

Not everyone has the right to contest a will. Before you begin the process of contesting the will, you need to make sure you have the legal standing to do it. In most states and cases, you have the right to contest the will if:

  • You would be an heir if there were no will. This includes spouses and children. Sometimes it also includes parents, siblings, and other relatives.
  • You are the beneficiary of the current will.
  • You were the beneficiary of a prior will.
  • You are the beneficiary of a newer will after the one in question.

If you aren’t any of the people listed above, you typically don’t have the grounds to contest a will. The court has put a process into place where only certain people can contest a will to protect the estate and property of the deceased person. Keep in mind that even if you are one of the people above, contesting a will successfully is actually pretty unlikely.

Once you have determined you have the right to contest the will, you will need to determine the legal grounds. Sometimes if the will simply isn’t fair to you, it doesn’t give you complete grounds to contest the will. There has to be a real legal reason for wanting to change or fight the will, such as the following.

1. Last Will Wasn’t Signed per Applicable State Laws

Each state has different laws about how a will should be signed. Usually, the will has to be signed in the presence of at least two witnesses. Everyone has to be in the same room at the same time and watch the person as they sign.

If you know the will wasn’t signed following the correct laws, you can describe how the will is invalid. Failing to sign is one of the main reasons why wills are contested.

2. Testator Lacked Testamentary Capacity to Sign a Will

This happens when a person does not understand their estate and property values or does not have the right mental capacity to sign a will. It can also happen if the person does not understand the full legal effect of signing a will.

For example, if a person was showing signs of dementia or other mental health issues, they would lack the correct testamentary capacity to sign a will. However, the rules vary by state. In some states, the court says that people with dementia can still understand the parts of a will and sign it with the required mental capacity.

If you know your loved one should not have signed the last will, you might need to check with their doctor and see if there was a formal diagnosis of dementia or something else that could have affected their mental capacity.

3. Testator was Unduly Influenced

If you know your loved one experienced nagging, threats, or verbal abuse to try and get them to sign a will, you will have the right to contest the will. You will need to talk to your loved one’s attorney and see if there was any pressure put on them to sign the will.

This can also include someone paying them or isolating them from their friends and family.

4. Last Will Was Procured by Fraud

This sometimes happens when the testator is given a document such as a power of attorney or a deed form to be signed. However, that person could be tricking them and actually giving them a will. Sometimes older people are more likely to be tricked because of their age or health problems.

If you know that your loved one signed a will and thought it was something else, you need to bring it to the attorney’s attention.

How to Contest a Will

Once you have decided that you have standing grounds to contest a will, you will need to start the legal procedure. The procedure can be lengthy, so you will need to start it right away because most states have a statute of limitations. Check with your state or the lawyer you are partnering with to see the statute in your particular state. You will lose your right to challenge the will if you do not file the papers before the deadline.

Step 1. Consider the Options

Before you start contesting a will, you need to consider the options and see if it’s worth the hassle and money. Hiring an attorney can cost thousands of dollars, which might be more than what you plan to receive from the will. Always weigh the pros and cons before contesting the will.

You also need to consider what lawyer you will use carefully. They will make or break the case, so make sure you get someone with experience in wills and probate courts.

Step 2. Get the Copy of the Will

You will need to get a copy of the will and be able to show it to the court and judge. You also need to get a copy of the will so you can review and determine the mistakes or other errors that are in the will.

Step 3. File a Claim with the Probate Court

Claims are usually filed in local and state courts. You have to file the claim in the county where the will-maker died. The court will then give you all the forms you need to file with the will. Make sure you fill out all the forms correctly and submit all the paperwork you need.

Step 4. Present the Case in the Court

Once you file all the paperwork, you have to appear in person and provide evidence to the court of why you are filing the claim. You will have to answer questions under oath and give testimony.

Step 5. Wait for the Decision

You will have to wait for the court to make a decision. If the contest of the will is successful, you will be handed over control of your claimed assets.

What Happens if a Will is Contested Successfully?

If a will is contested successfully, it will be overturned and become invalid. If there is a previous will, that last will is going to stand in its place. If there is no other last will, the testator will be considered dead intestate (without a will).

The court may also decide how much of the estate and assets you will be entitled to. If you get real property as a result, you will have to ensure the title paperwork is done correctly later.

What If You Contest the Will and Fail?

If the evidence is not strong enough and the will is not contested successfully, the current will remains the standing one. That means whatever is written in the will goes to the people stated in the will, and the assets will be divided.

Some states have a time limit on will contesting, which starts after the testator’s death. It is called the statute of limitations, and for example, in Illinois, this limit is six months, and in Tennessee, it is two years.

Published: Jul 25, 2022