How to Contest a Will: Grounds and Evidence Required - Adviser Investments

How to Contest a Will: Grounds and Evidence Required

April 19, 2022

Contesting a will is challenging. Each state has its own laws and the burden of proof rests on the challenger.

There are reasonable reasons to contest a will, including believing you haven’t received a fair share of your loved one’s estate or being left out altogether.

How to Contest a Will (Grounds)

Before contesting a will, you must first qualify as an interested party, That means you’re:

  • Mentioned in the current or previous will as a primary beneficiary (or you believe there is a newer will you’re included in)
  • Considered an heir in the event of intestate succession (i.e., deceased did not have a will)

How do I contest a will?

It’s not a coincidence the above table starts with hiring an estate attorney.

The odds of successfully contesting a will are low; therefore, seeking professional advice is step one.

An estate attorney can save you a lot of time and emotional energy by determining if you legally qualify for a challenge and if the evidence supporting your reasoning is sufficient. Find a good fit by listening to our recent podcast: 5 Key Questions: Finding the Right Estate Attorney for YOU.


RELATED: For straightforward financial advice from our experts, subscribe to The Adviser You Can Talk To podcast. Also, receive bi-weekly market trends and analysis of critical investment topics via your inbox when you sign up for our Adviser Fund Update newsletter.


Valid Reasons to Challenge a Will

There are legitimate reasons for challenging a will, including:

  • Creator (testator) lacked testamentary capacity (i.e., was not of sound mind) or was under undue influence—pressured to change the will
  • Will is not valid, possibly lacking qualified signatures and witnesses. (Learn more about a will’s contents in our post, What to Include in a Will.
  • A newer version exists

Contesting a Will (Evidence)

Determining whether the will’s content is legal is straightforward. It either includes what state law requires or it doesn’t (i.e., valid signatures, witnesses, notary, named estate executor, clear statement identifying the document as a last will and testament, etc.)

However, proving the testator was not of sound mind or was coerced into making changes to the will can be challenging. Evidence for such claims is typically supported by witness testimonies from the testator’s close friends, colleagues and medical professionals who have had repeated interactions with the testator and can speak to their mental capacity or the likelihood of being pressured.

For Example:

Let’s say a father decides to divide his retirement assets equally between his son and daughter, but bequeaths the family home exclusively to his son. The daughter challenges the will, claiming the father was pressured by her brother to change his will, leaving the family home exclusively to the brother.

Yet the witness statements tell a different story.

Several friends report the father had repeated conversations with them, describing his reasoning for leaving the family home to his son, always boasting about how his son helped maintain the house and cared for him and his late wife. Meanwhile, the father seldom heard from his daughter.

Can Stepchildren Contest a Will?

Yes, stepchildren can contest a will when they have been named beneficiaries in a previous will.

Most probate courts don’t recognize stepchildren as heirs unless included as a beneficiary within a legal will. The typical intestate succession hierarchy is: Surviving spouse; adopted/biological children; grandchildren and great grandchildren; parents; siblings and half-siblings; nieces and nephews.

Overall, the Uniform Probate Code is a starting point for understanding if a stepchild qualifies as a child when listed in a will.

Reasons (Not) to Challenge a Will

Before contesting a will, you should check if it contains a no-contest clause, i.e., if you’re a beneficiary and contest the will; and lose, you also lose your inheritance. (Although not all states enforce no-contest clauses.)

Next Steps

When contesting a will, it’s helpful to understand how the probate process works.

However, we recommend avoiding the process altogether by coordinating a comprehensive estate plan, including discussions regarding medical power of attorney, irrevocable trusts, living trusts and the federal gift tax.

Our clients know to contact Adviser Investments at any time for estate planning assistance; we often coordinate with their attorneys and estate representatives and are always happy to help. And please don’t hesitate to call or email us to find out more about the benefits of becoming a client. We pride ourselves on being The Planner You Can Talk To.


RELATED: Estate Planning Checklist: Must-Haves Before You Die


 


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