UPDATED: July 25, 2011
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Video by FreeAdviceLaw
A will contest occurs when someone challenges a will and asks that it be thrown out as invalid.
Although they are relatively rare, will contests do occur. They can only be brought by a person with standing - that means something to gain, such as inheriting a larger share of the deceased’s estate, or greater voice in managing the estate, if the will is found to be invalid and thus will not be admitted to probate.
A will contest can be brought by someone who would have inherited as a matter of law if there was never any will. For example if the deceased’s sole survivors are a son and a daughter, and the will leaves 90% of the estate to the daughter and only 10% to the son, the son has standing to contest the will because if it’s found invalid, he’d be entitled to a 50% share.
A will contest can also be brought by a someone who would get more under an earlier will than under the later will being offered for probate. For example, say in the deceased’s 1995 will he wrote in a bequest of $100,000 to a Chicago charity. Several years later he moved to Arizona and in 2010 he wrote a new will leaving nothing to that charity. The charity would have standing to challenge the 2010 will.
You just can’t challenge a will and start a will contest without some legal basis. Th most common reasons to challenge a will are:
It was not properly signed and witnessed as required by the state’s laws. Most states require the signature be witnessed by at least two witnesses who have nothing to gain under the will.
Another common reason for challenging a will is that the deceased lacked what the court’s refer to as testamentary capacity. This means that the person who made the will was either too young, mentally ill, or was otherwise incapable of understanding the process or implications of designating who should receive the property.
A will also may be invalidated when the process of creating the document involved fraud, force, or what is sometimes called undue influence. For example, if it can be proven that an elderly, very sick or otherwise vulnerable person was essentially tricked or bullied into making the will, it would be found invalid and thus not be admitted to probate.
Will contests may be rare, but they involve a significant amount of legal work, and almost always require the services of a very experienced lawyer.