How to Contest a Will
See if you have standing to challenge a will., Check if the will was properly signed., Find out if the will was signed under duress., Uncover if the will was procured by fraud., Determine if the testator lacked mental capacity., Discover if you have...
Step-by-Step Guide
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Step 1: See if you have standing to challenge a will.
Only certain people can challenge a will.
This list will vary from state to state, but it may included anyone who would have been an heir if the person had died intestate (W/o will), anyone mentioned in the will, anyone was in a previous or later will (i.e. an earlier will was submitted to probate), creditors, and so on. -
Step 2: Check if the will was properly signed.
Each state has signing requirements.
Typically, a will is valid only if it was signed in the presence of two witnesses.
Some states also require that the witnesses not be beneficiaries under the will.
Check with your state law to find the precise signing requirements. , A will signed under duress will not be valid.
A prime example of duress is an elderly person who creates a will in favor of a caretaker so that the caretaker will not abandon her. , Fraud is rare.
But if the testator was told that she was signing a contract, then the will she actually did sign would not be valid. , One of the most common challenges to a will is that the testator lacked mental capacity either because of mental illness, senility, or dementia.
If challenged, sufficient mental capacity can be established by showing that the testator knew the objects of his bounty, understood the kind and character of the property, and made a disposition based on a plan in his mind. , Unintentional exclusion means that you would normally be considered an heir, but were born, married or recognized/discovered by the testator after the will was executed.
Unless you are explicitly excluded from the will, you may have recourse to contest it.
If the will was drafted before you were born, you have a strong case for unintentional exclusion.
If you have been explicitly excluded then you have no recourse. , If you have reason to believe the will was forged, it should be submitted to probate, and court discretion. , Most states have time limits for challenging wills.
States laws will vary.
Additionally, the dates for these challenges will differ depending on whether or not you were served the petition as well as other factors. , You might be better off not challenging the will.
Absent a valid will, a testator’s estate will pass through probate and be divided among the heirs.
If you are not an heir, you will not receive anything.
Accordingly, you probably should rethink challenging the will.
State law varies, but generally an estate is divided between the surviving spouse and the remaining children.
If you are one of three surviving children, you would take a third of the estate (provided there is no surviving spouse).
If you are unhappy that you only received half under the will, then you might not want to try to invalidate it as your share will decrease. , Under this clause, if you contest a will and lose, you will receive nothing.
You might be better off just accepting your portion of the estate.
Not all states enforce “no contest” clauses.
In Michigan, for example, a “no contest” clause will not apply if there was probable cause to initiate proceedings.California also allows no-contest clauses. , If you file suit, you almost certainly will want an attorney.
Attorney’s fees range considerably depending on location.
But you can expect to spend upwards of $200 an hour for competent legal representation.
You can mitigate cost by doing initial fact-finding on your own.
However, you should not expect pro bono representation for a suit challenging a will. , In order to file a suit in court, you must base your complaint on something more than gossip or speculation.
For example, if you believe a will was fraudulently procured, you should have at least spoken to the witnesses at the signing.
You can be sanctioned for filing a frivolous or harassing lawsuit.
A suit without a basis in fact will be deemed frivolous.
As a result, you may have to pay the defendant’s attorneys’ fees.
You should take notes of all your meetings.
If possible, you should record the conversation (with the witness’s permission). , A formal complaint starts a lawsuit.
Ask for a blank complaint form at the probate court.
In some states it called an objection rather than a complaint.
The complaint does four things:
Identifies the parties: plaintiff and defendant.
You would be the plaintiff and the executor of the estate is the defendant.
Depending on state law, you should also list all people who are beneficiaries under the will.
States the legal basis for bringing the complaint.
You would argue that the will was invalid and cite the appropriate statute.
Explains the facts of the case.
You will need to explain the facts that support your legal argument that the will is invalid.
Asks the court for relief.
Here you explain that you want the court to invalidate the will. , You file in probate court, in the same place where you picked up your blank complaint form.
There will probably be a filing fee, which could run up to $200.
If you cannot afford that, then you should inquire about filing as an indigent.
The clerk should have the form. , The estate administrator as well as all other beneficiaries named under the will should be served.You can serve the complaint using a process server or by paying to have the sheriff do it.
Again, if you cannot afford this then you should mention so in your application to have fees waived.
Process servers can cost upwards of $100 per document served. , Unlike in most civil suits, a demurrer or motion to dismiss may represent a bigger hurdle than normal in this type of action. , Before filing your complaint, you should have interviewed key witnesses so that your complaint would have a basis in fact.
Now you can follow up on any other leads.
You should speak to any health care providers, to inquire about the testator’s state of mind.
If the testator suffered from memory loss or mood swings, you might use this information to show lack of testamentary capacity.
Speak to anyone who lived with the testator, including other residents of senior housing.
They may have observed the testator on a daily basis and can be a good source of information.
Speak to the people who witnessed the will signing, if you haven’t already done so.
They are the best witnesses as to the testator’s state of mind.
You should try to speak to the attorney who drafted the will.
Unfortunately, attorney-client privilege may limit what she can tell you.
But it can’t hurt to try.
Tread carefully when interviewing other family members, especially those who are beneficiaries under the will.
They may resist working with you or could lie to you. , The defendant must answer the complaint.
Typically, he will deny the allegations. , If the defendant has documents that you need, then you will file a discovery motion to request them.
Ask the clerk for a blank motion and list the category of documents you would like.
Feel free to request broad categories of documents, such as “Anything relating to testator’s mental fitness” or “correspondence relating to the will.” You can request discovery from anyone who might have relevant documents. , You or your attorney must attend pretrial hearings and conferences to discuss the status of the case.
If you have not reached a satisfactory settlement with the defendant, then you will schedule a trial date. , Look over the witnesses you have interviewed and identify the ones who help you make your case.
Then issue them a summons, printing the day and time of the trial, as well as its location.
Sample summons forms can be found at the courthouse.
You must mail them to the witness or have them served by a process server. , An opening statement lays out what you intend to prove.
By itself, an opening statement is not evidence.
Acknowledge bad facts up front.
If the defense will put up the defendant’s doctor to testify that the testator had sufficient mental capacity, then you should acknowledge that fact so that the jury isn’t surprised.
Be brief.
The average adult’s attention span is now only five minutes. , In a court case, parties produce evidence and then argue at the close of evidence that the facts support their side.
Your attorney will call the witnesses who best support your argument that the will is invalid.
As the person challenging the will, you will go first.
The defense is able to cross-examine your witnesses. , You might have documents that support your argument that the testator was senile.
Your attorney will introduce these documents into evidence by having a witness authenticate what the document is.
For example, if the testator was taking medication for Alzheimer’s, then you would want the prescription (maybe even the bottle) introduced into evidence.
The jury can then consider this evidence. , Just as the defense can cross-examine your witnesses, you get a turn to poke holes in the testimony of defense witnesses.
You should try to diminish their credibility.
A good way to challenge a witness’s credibility is to show that she was not at the event she claims to be testifying about.
You can “impeach” her testimony, for example, by showing credit card receipts that place her at a shopping mall when she claims to have been witnessing a will signing.
You can also impeach someone with a felony conviction.
The judge will consider someone’s criminal history in determining their credibility. , At the close of evidence, your attorney will argue that the evidence supports your argument.
A good closing argument links evidence in the case to the legal issues.
For example, if you are arguing that the testator lacked mental capacity, then you need to explicit tie how the medicine for Alzheimer’s supports your point.
Closing arguments should not be read from a prepared script but instead should feel spontaneous, even though they have been carefully prepared. -
Step 3: Find out if the will was signed under duress.
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Step 4: Uncover if the will was procured by fraud.
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Step 5: Determine if the testator lacked mental capacity.
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Step 6: Discover if you have been unintentionally excluded.
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Step 7: Determine whether the will was forged.
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Step 8: Make sure you contest the will while you still have time.
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Step 9: Calculate what you would receive if the will were invalidated.
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Step 10: Check for a “no contest” clause.
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Step 11: Evaluate the costs.
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Step 12: Perform preliminary fact gathering.
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Step 13: Draft a complaint.
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Step 14: File the complaint.
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Step 15: Serve notice on the estate administrator.
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Step 16: Be aware you may face demurrers or motions to dismiss after you file your complaint or objection.
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Step 17: Gather your evidence.
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Step 18: Receive and read the answer.
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Step 19: Seek discovery.
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Step 20: Attend pretrial hearings.
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Step 21: Summon witnesses.
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Step 22: Prepare an opening statement.
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Step 23: Call witnesses.
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Step 24: Introduce documents into evidence.
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Step 25: Cross-examine the defense witnesses.
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Step 26: Present closing argument.
Detailed Guide
Only certain people can challenge a will.
This list will vary from state to state, but it may included anyone who would have been an heir if the person had died intestate (W/o will), anyone mentioned in the will, anyone was in a previous or later will (i.e. an earlier will was submitted to probate), creditors, and so on.
Each state has signing requirements.
Typically, a will is valid only if it was signed in the presence of two witnesses.
Some states also require that the witnesses not be beneficiaries under the will.
Check with your state law to find the precise signing requirements. , A will signed under duress will not be valid.
A prime example of duress is an elderly person who creates a will in favor of a caretaker so that the caretaker will not abandon her. , Fraud is rare.
But if the testator was told that she was signing a contract, then the will she actually did sign would not be valid. , One of the most common challenges to a will is that the testator lacked mental capacity either because of mental illness, senility, or dementia.
If challenged, sufficient mental capacity can be established by showing that the testator knew the objects of his bounty, understood the kind and character of the property, and made a disposition based on a plan in his mind. , Unintentional exclusion means that you would normally be considered an heir, but were born, married or recognized/discovered by the testator after the will was executed.
Unless you are explicitly excluded from the will, you may have recourse to contest it.
If the will was drafted before you were born, you have a strong case for unintentional exclusion.
If you have been explicitly excluded then you have no recourse. , If you have reason to believe the will was forged, it should be submitted to probate, and court discretion. , Most states have time limits for challenging wills.
States laws will vary.
Additionally, the dates for these challenges will differ depending on whether or not you were served the petition as well as other factors. , You might be better off not challenging the will.
Absent a valid will, a testator’s estate will pass through probate and be divided among the heirs.
If you are not an heir, you will not receive anything.
Accordingly, you probably should rethink challenging the will.
State law varies, but generally an estate is divided between the surviving spouse and the remaining children.
If you are one of three surviving children, you would take a third of the estate (provided there is no surviving spouse).
If you are unhappy that you only received half under the will, then you might not want to try to invalidate it as your share will decrease. , Under this clause, if you contest a will and lose, you will receive nothing.
You might be better off just accepting your portion of the estate.
Not all states enforce “no contest” clauses.
In Michigan, for example, a “no contest” clause will not apply if there was probable cause to initiate proceedings.California also allows no-contest clauses. , If you file suit, you almost certainly will want an attorney.
Attorney’s fees range considerably depending on location.
But you can expect to spend upwards of $200 an hour for competent legal representation.
You can mitigate cost by doing initial fact-finding on your own.
However, you should not expect pro bono representation for a suit challenging a will. , In order to file a suit in court, you must base your complaint on something more than gossip or speculation.
For example, if you believe a will was fraudulently procured, you should have at least spoken to the witnesses at the signing.
You can be sanctioned for filing a frivolous or harassing lawsuit.
A suit without a basis in fact will be deemed frivolous.
As a result, you may have to pay the defendant’s attorneys’ fees.
You should take notes of all your meetings.
If possible, you should record the conversation (with the witness’s permission). , A formal complaint starts a lawsuit.
Ask for a blank complaint form at the probate court.
In some states it called an objection rather than a complaint.
The complaint does four things:
Identifies the parties: plaintiff and defendant.
You would be the plaintiff and the executor of the estate is the defendant.
Depending on state law, you should also list all people who are beneficiaries under the will.
States the legal basis for bringing the complaint.
You would argue that the will was invalid and cite the appropriate statute.
Explains the facts of the case.
You will need to explain the facts that support your legal argument that the will is invalid.
Asks the court for relief.
Here you explain that you want the court to invalidate the will. , You file in probate court, in the same place where you picked up your blank complaint form.
There will probably be a filing fee, which could run up to $200.
If you cannot afford that, then you should inquire about filing as an indigent.
The clerk should have the form. , The estate administrator as well as all other beneficiaries named under the will should be served.You can serve the complaint using a process server or by paying to have the sheriff do it.
Again, if you cannot afford this then you should mention so in your application to have fees waived.
Process servers can cost upwards of $100 per document served. , Unlike in most civil suits, a demurrer or motion to dismiss may represent a bigger hurdle than normal in this type of action. , Before filing your complaint, you should have interviewed key witnesses so that your complaint would have a basis in fact.
Now you can follow up on any other leads.
You should speak to any health care providers, to inquire about the testator’s state of mind.
If the testator suffered from memory loss or mood swings, you might use this information to show lack of testamentary capacity.
Speak to anyone who lived with the testator, including other residents of senior housing.
They may have observed the testator on a daily basis and can be a good source of information.
Speak to the people who witnessed the will signing, if you haven’t already done so.
They are the best witnesses as to the testator’s state of mind.
You should try to speak to the attorney who drafted the will.
Unfortunately, attorney-client privilege may limit what she can tell you.
But it can’t hurt to try.
Tread carefully when interviewing other family members, especially those who are beneficiaries under the will.
They may resist working with you or could lie to you. , The defendant must answer the complaint.
Typically, he will deny the allegations. , If the defendant has documents that you need, then you will file a discovery motion to request them.
Ask the clerk for a blank motion and list the category of documents you would like.
Feel free to request broad categories of documents, such as “Anything relating to testator’s mental fitness” or “correspondence relating to the will.” You can request discovery from anyone who might have relevant documents. , You or your attorney must attend pretrial hearings and conferences to discuss the status of the case.
If you have not reached a satisfactory settlement with the defendant, then you will schedule a trial date. , Look over the witnesses you have interviewed and identify the ones who help you make your case.
Then issue them a summons, printing the day and time of the trial, as well as its location.
Sample summons forms can be found at the courthouse.
You must mail them to the witness or have them served by a process server. , An opening statement lays out what you intend to prove.
By itself, an opening statement is not evidence.
Acknowledge bad facts up front.
If the defense will put up the defendant’s doctor to testify that the testator had sufficient mental capacity, then you should acknowledge that fact so that the jury isn’t surprised.
Be brief.
The average adult’s attention span is now only five minutes. , In a court case, parties produce evidence and then argue at the close of evidence that the facts support their side.
Your attorney will call the witnesses who best support your argument that the will is invalid.
As the person challenging the will, you will go first.
The defense is able to cross-examine your witnesses. , You might have documents that support your argument that the testator was senile.
Your attorney will introduce these documents into evidence by having a witness authenticate what the document is.
For example, if the testator was taking medication for Alzheimer’s, then you would want the prescription (maybe even the bottle) introduced into evidence.
The jury can then consider this evidence. , Just as the defense can cross-examine your witnesses, you get a turn to poke holes in the testimony of defense witnesses.
You should try to diminish their credibility.
A good way to challenge a witness’s credibility is to show that she was not at the event she claims to be testifying about.
You can “impeach” her testimony, for example, by showing credit card receipts that place her at a shopping mall when she claims to have been witnessing a will signing.
You can also impeach someone with a felony conviction.
The judge will consider someone’s criminal history in determining their credibility. , At the close of evidence, your attorney will argue that the evidence supports your argument.
A good closing argument links evidence in the case to the legal issues.
For example, if you are arguing that the testator lacked mental capacity, then you need to explicit tie how the medicine for Alzheimer’s supports your point.
Closing arguments should not be read from a prepared script but instead should feel spontaneous, even though they have been carefully prepared.
About the Author
Logan Reyes
Logan Reyes has dedicated 9 years to mastering lifestyle and practical guides. As a content creator, Logan focuses on providing actionable tips and step-by-step guides.
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