Can You Contest a Will? Understanding Will Disputes

by Rachel Elle
Last will on cream color paper in opened  envelope

Saying goodbye to a loved one is never easy, but it's even harder when a problematic will comes into play. Dealing with both the death of a friend or family member and the legal aspects of estate management creates unique challenges, both emotionally and logistically.

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If you were expecting a different outcome in a will — say, your late grandmother left her house to your cousin and not to you, as you were always told — coming to terms with the reality of inheritance can be very overwhelming. However, you don't always need to accept a will as written. Contesting a will is possible and, when handled properly, can be a viable option.

Can You Contest a Will?

Simply put, yes, it's possible to contest a will. However, this is a complicated legal process that isn't always successful.

Contesting a will involves filing a petition from the court and trying to argue that the terms of a will aren't in line with what the decedent intended. Generally, this must require a specific legal foundation; just because you expected to receive more from a will and are upset at your inheritance doesn't mean contesting a will is appropriate. Contesting a will can be very costly, so be sure the benefits are likely to outweigh the costs before moving forward.

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On What Grounds Can You Contest a Will?

To contest a will, you need two things: grounds and standing.

“Standing” refers to having financial stakes in the will being contested. This means the will as it stands would result in you receiving less than if the will was set aside. If you'd receive the same or a lower amount of assets if the person had no will at all, you have no standing. If, for example, you're a friend of the decedent and expected to be acknowledged in their will but weren't, you don't have standing because you'd still receive nothing without a will. Those most likely to contest a will with standing are disinherited heirs or heirs who believe they weren't provided a fair split of assets.

“Grounds” refers to the reason a will is being contested, and simply being unhappy with the outcome doesn't qualify. Valid grounds for contesting a will include lack of capacity, undue influence, fraud, forgery, elder abuse, mistakes and revocation. For instance, if you believe a sibling convinced your parent with dementia to edit their will to write you out, you could make a case on the basis of lack of capacity.

How Long Do You Have to Contest a Will?

A will should be contested as quickly as possible, ideally before the probate process begins. If a will has already been admitted to probate, a statute of limitations may apply, but this varies from state to state. In California, for example, the statute of limitations is 120 days. In New York, on the other hand, there is no statute at all.

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What Happens When You Contest a Will?

When you contest a will, your estate attorney will work with you to draft a petition clearly outlining your case. Doing so might require extensive research to make sure state laws are understood and can demonstrate the legal foundation you have for contesting. When this is complete, the petition can be filed with the state's probate court.

Once processed, you'll receive a court date. At this time, you'll have the opportunity to present your case, including supporting evidence. Evidence might include past drafts of a will, witness statements and documents like medical records.

What's the Success Rate of Contesting a Will?

The success rate of contesting a will is highly variable and largely depends on the nature of the contest. If you have strong standing and solid grounds to file a contest on, you very well may succeed with your petition. If you're filing more out of spite than anything else, chances are good you'll lose.

However, most of the time, contesting a will isn't worth it, even when you're likely to win. The process is long and expensive and can create significant strife within a family. Due to the high expense of retaining an attorney and going to court, whatever advantages may come out of a bigger inheritance could fall short of the cost of the process. As such, the contesting process is most valuable for those with an iron-clad case surrounding a very large estate.

At the end of the day, contesting a will isn't easy, and it's not cheap. Before moving forward, be sure you understand the laws in your state and the validity of your case, as well as the anticipated costs and potential damage to familial relationships.

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