Can you contest a will?

Who can contest

Not everyone who is unhappy with a will can challenge it. You must have standing, meaning a financial interest that the will affects. That usually includes heirs at law who would inherit if the will were thrown out, and beneficiaries of an earlier will who would receive more under it. A friend who expected a gift but was never named in any will generally has no standing.

Grounds for a will contest

• Lack of testamentary capacity — when signing, the person did not understand that they were making a will, the general nature and extent of their property, or who their family members were. A diagnosis of dementia is not automatically enough; capacity is judged at the moment of signing, and people can have lucid periods.
• Undue influence — someone in a position of trust overpowered the person's free will, often a caregiver or relative who isolated them and was involved in making the will. Many states presume undue influence when a person in a confidential relationship helped procure a will that heavily favors them.
• Fraud — the person was deceived about the document's contents or about facts that led to the gifts.
• Improper execution — the will was not signed and witnessed as state law requires, typically two witnesses. Handwritten (holographic) wills are valid only in some states.
• Forgery.
• Revocation — a later will or a deliberate act, such as tearing up the original, revoked it.

Unfairness alone is not a ground. People are free to leave their property unequally or to disinherit adult children.

Deadlines

Will contests have short deadlines. Examples: 120 days after the will is admitted to probate in California; three months after notice in Florida; two years in Texas after the will is probated (with exceptions for fraud and incapacity). Some states tie the deadline to formal notice, so heirs should never ignore probate papers. Missing the deadline usually ends the right to contest.

No-contest clauses

Many wills include an in terrorem or no-contest clause, which disinherits any beneficiary who challenges the will and loses. Most states enforce these clauses but make an exception when the challenger had probable cause; a few states, such as Florida, do not enforce them at all. A beneficiary who receives something under the will should weigh this risk carefully.

Watch

How a contest unfolds

1. The challenger files an objection or petition in the probate court.
2. Both sides exchange evidence: medical records, the drafting lawyer's file, witness statements, bank records.
3. Depositions of the witnesses, the lawyer who drafted the will, doctors and family members.
4. Mediation — most will contests settle.
5. Trial, usually before a judge, sometimes before a jury.

The person contesting generally bears the burden of proof, though presumptions of undue influence can shift it.

Costs and outcomes

Will contests are expensive, often tens of thousands of dollars, and can delay the estate for a year or more while property sits frozen. If the contest succeeds, the court typically admits an earlier will or, if there is none, distributes the estate under intestacy rules. Some lawyers take will contests on contingency. The executor's legal fees defending the will are usually paid from the estate, reducing everyone's share.

Trusts and other assets

A will contest does not reach assets that pass outside the will. Challenging a living trust, beneficiary designation or joint account requires a separate claim, often on the same grounds and with its own deadline.

Before you contest

Gather the will and any earlier versions, medical records near the signing date, and information about who arranged the lawyer and signing. Consider whether the evidence is strong enough to justify the cost and family conflict. A probate litigation lawyer can assess the case quickly — and should do so well before the deadline.

Contests brought in bad faith can also result in the challenger paying the estate's legal costs in some states.