Contests to a Last Will and Testament: Essential Tips

When a loved one passes away (if they have a Will), his or her estate will likely go through the court-supervised probate process where the assets of the decedent are managed and distributed. The length of time needed to complete the probate process will depend on the size and complexity of the estate and the local rules and schedule of the probate court, amongst other things.

Unfortunately, one significant setback in the administration of an estate is an objection to a will, most commonly referred to as a “will contest”. There are many reasons why loved ones file a petition to contest a will and doing so is more common than you would think. Not only will a contest slow down the process of distributing assets and handling estate affairs, but, as you can imagine, it is often incredibly costly to litigate.

In order to actually file a will contest, an individual must have legal “standing” to raise their objections. This can occur if children are receiving a disproportionate share under the will or when distribution plans change from a prior will to the most current will. This can also occur if there is a dispute over whomever the decedent appointed to serve as the Executor or if there are concerns about the decedent’s mental capacity when they drafted their will.

Ultimately, in order to successfully contest a will, the protesting party must prove that the will is invalid and doing so requires proof. The following are the most common, but not the only, scenarios under which a will may be deemed invalid:

1.     Undue Influence

2.     Mental/Testamentary Incapacity

3.     Will was not properly drafted and/or executed

4.     The Will was revoked prior to decedent’s death

5.     Fraud by a third party

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