As anyone who has served as the executor of an estate knows, the will is the most important document when it comes to estate planning and the entire probate process. Dying testate (with a will) or intestate (without a will) can have a huge impact on asset distributions, the length of the estate settlement process, and the cost of probate.
The will is viewed as the deceased’s final directive. It is the individual’s final wishes before their passing, and the probate court will nearly always honor the document’s instructions.
Although the will is a powerful document, there are times when the will falls under the scrutiny of the court. Interested parties may dispute the contents of the will or even call the document’s validity into question.
There are a few different terms that might describe these disputes, but the most common term is “will contest.”
If you’ve ever seen a movie that depicts these scenarios, you know exactly what I’m talking about. Knives Out, the 2019 murder mystery with an all-star cast, is a great example of a will contest in action.
I’ll spare the details of Knives Out for those who haven’t seen it (no spoilers here, of course!), but the general idea is that a wealthy individual passes away dramatically and leaves a questionable will behind. Because they feel that they have been cut off from what is rightfully theirs, the family of the wealthy individual disputes the contents of the will.
It’s a tale of fiction, but the movie presents key scenes that address the concepts of will contests, sound capacity, undue influence, and document forgery.
If those terms are confusing, don’t worry — we’ll break them down here by looking at each term in detail.
But first, let’s ask the most important question: what exactly is a will contest?
What is a Will Contest?
A will contest is a legal proceeding that occurs in the probate process when interested parties file a claim with the probate court to dispute the validity of the document.
That’s a hefty sentence to unpack, so let’s look at a few of the words in the sentence.
A legal proceeding: it’s important to recognize that a will contest is an official legal proceeding — it’s not just a disagreement between family members or close friends. It’s a serious claim that the will is not what it seems to be.
In the probate process: A will contest does not occur before the deceased’s passing and cannot occur after estate settlement. The claim must be filed with the court during the probate process, and therefore how long you or someone else has to contest the will is tied to how long the probate process is. You cannot wait until after probate and estate settlement to contest a will.
Interested parties: If you’re wondering who can contest a will, it’s not just any random person. You can only file a claim if you are an interested party to the estate. In the lens of the probate court, this means that you have something to gain or lose from the will, which also implies that you are a beneficiary listed in the will or one of the deceased’s heirs.
Validity of the document: A will contest is filed when the validity of the will is in question. Just because a beneficiary, family member, or friend does not like what the will says does not mean that the disgruntled individual can petition the court to begin a will contest. You must actually believe that the will is invalid.
Now that we’ve dissected the definition of a will contest, let’s make one important clarification: a will contest requires evidence.
Atticus Advice: If you file a petition with the probate court to begin a will contest, you need to be ready to present evidence that the will is invalid. Without evidence, the judge will laugh you right out of the courtroom and your petition will be moot. Filing a petition might mean that you’ll need to present physical evidence, find witnesses to back up your claim, or answer questions under oath.
We know what a will contest is now, but why would you need to petition the court for a will contest in the first place? What arguments are used to claim that a will is invalid?
Lack of Capacity
The argument of lack of capacity states that the will creator was not of sound mind when they created the will.
This is the most common argument in will contests, especially in situations where the creator was elderly.
To create a legally-valid will, the creator must have the mental capacity to understand what they are creating and signing. After all, the will is the final determination as to where the estate assets go after the creator’s death.
The creator must fully understand what is going on around them at the time of the will’s creation. They must be able to make important decisions with their own free will.
Key Point: Mental capacity is assumed unless proven otherwise. Being forgetful at times or not being as sharp-witted in later years does not mean that the will creator lacked capacity. There must be clear evidence that the creator lacked sound judgment and did not understand what they were doing when they created the will.
Although not as common as the claim of a lack of capacity is the argument that undue influence was used.
Undue influence is the claim that the will creator was pressured or forced into drafting or amending their will in a certain way to benefit specific individuals.
Unfortunately, this scenario is not as rare as you might think. As with the mental incapacity argument, this situation often occurs when an elderly individual is pressured into drafting their will in a certain way by younger relatives.
You can see how this might happen. Many elderly individuals live in the same house or are under the care of their children or younger relatives. A power imbalance exists between the younger relatives and the elderly will creator, and the younger relatives may try to use some of their power to control what is included in the will.
Unfortunately, it can be difficult to prove undue influence even if it does occur. A family member may say that they were merely “suggesting” or “hoping” that the elderly will creator would draft their will in a certain way. Without evidence, it is nearly impossible to prove that undue influence occurred.
Other arguments in the will contest might surround the actual validity of the signed document itself. How do you know that the document was actually drafted by the deceased? How do you know that it wasn’t forged by someone else?
As we’ve written about before, wills are not always notarized legal documents. In fact, wills come in all shapes and sizes.
There are two types of written wills that are considered valid in most states:
- Attested Wills: These documents are the signed and witnessed legal documents that we typically think of when we think of wills.
- Holographic Wills: These are wills that have been written by the deceased not but witnessed. Holographic wills cannot be typed or written digitally, as it is the deceased’s handwriting that proves the validity of the document. These wills are sometimes called “soldier’s wills.” You can learn more about the different types of wills at our resource here.
Attested wills are easy to verify, as the documents are witnessed and notarized. Holographic wills, however, are more difficult to verify.
If an ill-intending individual could replicate the deceased’s handwriting, it is feasible that the individual could create a holographic will and claim that it was the deceased’s final wishes. A will contest might occur if other interested parties suspect that the will was forged.
How to Contest a Will
If you’re on the other side of the equation and wish to contest a will yourself due to lack of capacity, undue influence, or other foul play, here’s what do:
- Consider contacting a lawyer. Will contests get messy. If it’s serious enough to consider questioning a will’s validity, you don’t have to get one, but you probably should.
- Call the decedent’s probate court. Either way, contesting a will usually involves calling or dropping by the probate court located in the deceased’s domicile (permanent place of residence). They’ll be able to point you to the right claims forms to fill out.
- Gather and present evidence to a court. As I said above, you need to have a dang good reason for believing the will is invalid. You’ll need to collect any and all evidence and present it to the court as they request + provide instructions for what you think should be different.
- You wait for the decision. After that, it’s in the hands of the court, and they will determine whether or not to grant your contest or not.
The Bottom Line on Will Contests
You might not find yourself in a Knives Out situation, but you might encounter a will contest if lack of capacity, undue influence, or document forgery are ever brought up during the probate process.
To protect the estate from a will contest, it is important to maintain careful records regarding the will’s origins. If you’re serving as the executor of the estate, it’s important to know the answers to the following questions:
- When did the creator draft the will?
- When did the creator sign the will?
- Who were the witnesses to the will?
- Who notarized the will?
- Who are the beneficiaries named in the will?
- Who are the interested parties that could contest the will?
Answering these questions will ensure that will contests are avoided throughout the entire probate process. This will reduce the possibility of the probate process becoming more complicated, longer, and more expensive if any interested party questions the validity of the will.
If you’re still confused about probate, don’t worry — we know that it’s complicated. Check out our beginner’s guide to probate for a high-level overview.
And if you just lost a loved one, please know that we are here for you during this grieving process. Losing a loved one is hard enough, and serving as the executor of the loved one’s estate can be very difficult. Our 2022 checklist will guide you on how to proceed after losing a loved one.