What are will contests and how do I avoid them?

Most of the challenges to invalidate wills, or will contests, are made by potential heirs or beneficiaries who got little or nothing in the will. Challenges to the validity of a will must be filed in probate court within a certain number of days after the person making the challenge receives notice of the death or of the petition to admit the will to probate.

Simply being unhappy about a will or disappointed isn’t a good enough reason to challenge it. There must be a valid legal ground for the objection. The typical objections are:

  1. The will was not properly drawn, signed, or witnessed, according to the state’s formal requirements;
  2. The decedent lacked mental capacity at the time the will was executed;
  3. There was fraud, force, or undue influence; or
  4. The will was a forgery.

If the will is held invalid, the probate court may invalidate all provisions of the will or only the challenged portion. If the entire will is held invalid, generally the proceeds are distributed under the laws of intestacy of the probating state (the laws that apply when there is no will).

Needless to say, if there is even the possibility of a will contest, an experienced probate lawyer is a must to help you prepare your will. If you tell the lawyer you suspect challenges will be made, there are several things your lawyer can do. She or he may ask a physician to evaluate your mental competence—and perhaps serve as a witness when you sign your will. Your lawyer may videotape your execution of the will (signing before witnesses), and she or he may put in provisions that would give anyone challenging the will nothing at all should the challenge fail.

Will contests are expensive, both for the person bringing the challenge and for the estate. The money to pay to defend a will contest is taken out of the total assets of the estate, and all the heirs suffer. For this reason, it’s best to do everything possible to avoid a will challenge if you know someone will be disappointed or angry about the provisions of your will.