How Do You Contest a Will?

Understanding the legal reasons to challenge a will

By Canaan Suitt, J.D. | Last updated on January 24, 2023

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A last will and testament is an important legal document that states an individual’s final wishes and says how their assets should be distributed when they die.   

The creator of a will is called the testator. In their will, the testator appoints a personal representative (also called the executor of a will in some states) to guide their estate through probate court. Probate is the court-administered process of distributing estate assets in a will.  

Those who inherit something through a will are generally called beneficiaries. Depending on the type of property inherited, other terms may be used: 

  • Devisees are beneficiaries of real property 
  • Legatees are beneficiaries of personal property 

Beneficiaries can be family members or other loved ones or entities such as charitable organizations. If a beneficiary thinks they haven’t received a fair share or that the will doesn’t express the individual’s actual wishes, they may challenge the will in probate court.  

This article will give an overview of some of main legal grounds to challenge a will. Once you have an overview of the issues, it’s wise to speak with an experienced estate litigation attorney about your particular situation to ensure your interests are protected.  

What Are Common Reasons to Contest a Will?  

“The grounds for contesting a will do vary from state to state, sometimes quite a bit, but generally there are three basic reasons to contest a will or trust,” says Missouri estate litigation lawyer Robert Will.   

The three most common reasons to challenge the validity of a will are:  

Lack of Testamentary Capacity

One of the most common reasons people cite when contesting a will is that the “testator had no mental capacity—in other words, they were completely incapacitated and unable to make any kind of disposition of their property,” says Will.

Proving incapacity “is a pretty high bar.” For example, “if you have diagnoses such as Alzheimer’s, that doesn’t necessarily disqualify you from having the sufficient mental capacity to create a will or trust.” Of course, “it is possible [to prove complete incapacity]” in some cases.  

Undue Influence

Will says the other main reason to contest a will or trust “is that it was procured by the undue influence of someone else” instead of expressing the testator’s free will.

The person who exercises undue influence “can occasionally be a family member but is often a caregiver, friend, or neighbor—in general, somebody who took over the person’s affairs and was preying on an elderly person.” While cognitive impairments or diagnoses such as Alzheimer’s don’t mean a person lacks the capacity to create a will, “it does make them more susceptible to undue influence.”  

Defective Drafting

“One reason is that the will or trust is defective from a form standpoint,” says Will. For example, perhaps the testator didn’t sign the will, there was a lack of witnesses, or the terms of the will are unclear.

There can be many deficiencies when it comes to estate planning forms. This is a major reason why Will cautions against do-it-yourself wills. “Doing [a will] with forms off of websites and so on can be very dangerous if you’re not an estate planning attorney. Sometimes the forms are perfectly fine, but in your particular state or with particular assets you have, they might not handle matters the way they should. If the forms are defective, they may end up not being enforceable,” says Will.

Nevertheless, Will says, “it’s not necessarily a good idea to contest a will on this issue” since it may not end up benefiting you. If you decide to contest a will for technical defects, you want to ensure this strategy will benefit you from a practical point of view.

“If you have some prior and enforceable will that handles things differently, and you happen to have received more in that prior version than the current one, and you happen to find some technical flaws in the current one, you might use those flaws as a basis to challenge the will. If the current one isn’t enforceable, then the will immediately prior in time that is enforceable will result in a larger inheritance.” 

Will says that many times, “lack of capacity and undue influence are asserted together as separate counts in a claim.”  

Who Can Contest a Will?  

In order to contest a will, you must have what’s called “legal standing.”   

Legal standing means you are qualified to enforce legal rights in court. Generally, you have a legal interest in a judicial proceeding. The outcome will personally impact you.  

In other words, you must be an interested party in the estate. To be an interested party, you must be one of the following:  

  • A named beneficiary in a will   
  • Someone who would benefit from the estate if the current will were invalidated and a prior will enforced or intestacy laws applied  

How Long Do You Have to Contest a Will?  

“Time is of the essence” when contesting an estate plan, says Will.   

Statutes of limitations are state laws that say how long someone has to bring legal action. If you miss the deadline in the statute of limitations, you are barred from bringing legal action.  

“One thing that’s true in most states is that it’s usually a very short timeframe after a person dies within which you can contest a will or trust,” says Will. “The time period varies from state to state but is often as short as six months from when the person dies, or when you receive notice of the trust or will, or when the will is filed with a probate court. The common denominator is that it’s usually a very short timeframe.”  

“So, if there’s a situation where someone has died, and there’s a significant amount of assets involved, [people who are interested in contesting a will] need to start looking really quickly to figure out if there’s anything to challenge and what the timeframe is,” says Will.  

To ensure you meet the deadlines, “you really need to get a capable attorney specializing in estate litigation cases.”  

“The rules that apply to estate litigation often differ from your standard litigation procedures,” he says.   

“Trusts and estates are different enough that even excellent general litigators may miss some of the nuances or “traps for the unwary,” or may have to charge more to educate themselves on the special rules and issues involved when compared to lawyers who specialize in this area and sort of know those things off the top of their heads.”  

As in many areas of estate planning law, it’s wise to get legal help on the front end and as soon as possible if you’re contesting a will.  

Questions for an Estate Litigation Attorney  

Most estate planning lawyers provide free consultations for potential clients, letting you get legal advice about your estate without initial costs.  

To get the most out of a consultation, ask informed questions such as:  

  • What are your attorney’s fees and billing options?  
  • What is your experience as a probate attorney?  
  • What are the requirements for a valid will in my state?  
  • How do you prove a sound mind?  
  • Is there a previous will to fall back on if I challenge the current will?  
  • How long does the probate process last?  
  • How expensive is probate litigation?  
  • What is a no-contest clause?  

Once you have met with a lawyer and gotten your questions answered, you can begin an attorney-client relationship.  

Look for a lawyer who specializes in wills in the Super Lawyers directory for your estate planning needs.  

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